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IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF THE CASES
UNDER THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 (-cum-I ADDITIONAL SESSIONS JUDGE): EAST GODAVARI DISTRICT:
RAJAMAHENDRAVARAM
Present: Sri A.V.Ravindra Babu I Additional Sessions Judge
Friday, the 18th day of August, 2017
POCSO SESSIONS CASE NO.95/2016
Name of the Accused and Shaik Ahamadvalli alias Valli, S/o.Wahab, 21 particulars years, C/Muslim, mason, R/o.D.No.17-24-8/5, Vangaveetivari street, behind Ratna Talli Pillala Hospital, Seetampeta, Rajahmundry.
Name of the complainant State rep. by its Inspector of police, III Town L&O P.S., Rajahmundry.
ChargesUnder Sections 376(2)(i) IPC and Sec. 5(m) r/w 6 and Sec.10 of POCSO Act, 2012.
Plea of the AccusedNot guilty.
Finding of the Judgefound guilty of the offences under sections 376 (2)
(i) r/w 511 IPC and sec. 5(m) r/w 6 r/w 18 of the POCSO Act and further charge under sec.10 of the POCSO Act.
Sentence or Order
In the result, the accused is found guilty of the offences under sections 376 (2)(i) r/w 511 IPC and sec. 5(m) r/w 6 r/w 18 of the POCSO Act and further charge under sec.10 of the POCSO Act and he is convicted of the same under section 235(2) Cr.P.C.
The prosecution is conducted by Sri P.Seshaiah, Additional Public Prosecutor (grade-I), East Godavari District, Rajamahendravaram.
Accused is defended by Sri Ch.Venkateswara Rao, Advocate, Rajamahendravaram.
The case is connected with Cr.No.2/2014 of III Town L&O police station, Rajamahendravaram. This case is coming on 10.8.2017 for final hearing before me and having stood over for consideration till this day, the Court delivered the following:
JUDGMENT
This POCSO Sessions Case arises out of PRC 9/2014 on the file of III
Addl. Judicial Magistrate of First Class, Rajamahendravaram pertaining to crime No.2/2014 of III Town L&O police station under sections 376(2)(i) IPC 2 Fair and Sec.10 of Protection of Children from Sexual Offences Act (for short
POCSO Act) which has been committed to this court by virtue of a committal order dated 17.5.2016 and thereupon it has been assigned with POCSO
Sessions Case No.95/2016.
2. The state represented by the Inspector of police, III Town L&O P.S,
Rajamahendravaram filed a charge sheet in the above said crime alleging in substance that the accused is resident of Seetampeta, Rajahmundry and he is working as mason. He is a bachelor who is addicted to consumption of alcohol. The offence took place at Krishna nagar in Rajahmundry, East
Godavari District. LW.2 is the victim aged about 6 years. LW.1-K.Renuka is the defacto complainant and mother of the victim. LW.3-K.Laxmanarao is the elder brother of victim. LW.1 has been residing in the 3rd tiled house bearing
D.No.17-11-18 belonged to one Melim Sitha situated beside the big drain at
Krishna Nagar, Rajahmundry on rental basis. The husband of the defacto complainant has been working as a lorry cleaner and three months back he had been to Bangalore by lorry. LW.1 got a son (LW.3) aged 8 years and a daughter (Victim) aged 6 years. The victim is studying in Sarada Vidya
Mandir. The localities of Seetampeta and Krishna Nagar are situated side by side. The accused used to wander in and around these two localities during his leisure. At that juncture, he laid an evil eye over the victim and is waiting for an opportunity to fulfill his sexual lust.
3. On 31.12.2013 at about 11.30 PM LW.1 along with her friend LW.4-
M.Rekha had been to a Church at Pandiri Mahadevuni colony at Rajahmundry.
She asked her son LW.3 to close the doors of the house from inside and sleep in the house along with the victim and her niece namely Hema Rani alias
Chitti who is aged about 4 years. Accordingly LW.3 closed the doors and went to sleep. At that time, the accused having noticed the absence of
LW.1 leaving her children in her house, taking advantage of loneliness of her 3 Fair children, directly went to the house of victim between 12.00 to 12.30 AM i.e.
on 1.1.2014 and knocked the door. Then LW.3 thought that it was his mother and opened the door. Then the accused high-handedly and forcibly pushed him and criminally trespassed into the house, went upto the cot, removed the blanket that was covered by the victim, pulled her from the cot, held her hand and dragged her to the kitchen room and made her naked and he also removed his pant upto his knees and he laid upon the victim. He kissed her, bitten her lips and caused bleeding injuries, slapped on her cheeks besides swing on her and committed rape. On that when the victim raised cries, her brother (LW.3) went upto the accused and pulled his legs. But the accused kicked him. Meantime at about 12.30 AM, LW.1 returned home from the
Churcch and found that the door is kept open and having heard the cries of victim, she rushed into the house and eye witnessed the offence.
Immediately LW.1 went upto the accused, held his hair, lifted him and took him out from her house by raising cries. On that the neighbours and others came and caught hold of the accused when his pant was still slipping down to his knees. The neighbours came to know about the offence committed by the accused. The accused wore his pant, managed himself and tried to escape from the scene. In that course, he ran away and fell down on the road, hit the divider and sustained some simple injury on his head and right shoulder. However he again picked up and escaped. LW.1 tried to inform the incident to her husband through phone. But he did not come into contact with her. LW.1 consulted the elders of her locality, her parents and further her husband over phone on the next day and then she brought the victim to
III Town L&O P.S, Rajahmundry Urban on 1.1.2014 at about 8.00 PM and reported the matter orally. LW.14-Probationary Deputy Superintendent of police, III Town L&O P.S., Rajahmundry recorded the statement of LW.1 and registered the same as a case in crime No.2/2014 under sections 376(2)(i)
IPC and Sec.10 of the POCSO Act and took up investigation.
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4. During the course of investigation, the victim was examined through
LW.13-K.Jaya Lakshmi, woman head constable under sec.161(1) Cr.P.C and her statement was recorded under video coverage. The victim was sent to the District hospital, Rajahmundry for medical examination. LW.14 visited the scene of offence and examined the same in the presence of mediators i.e.
Lws.9 and 10 namely Adinarayanarao and R.Seshu and got drafted observation of the scene of offence and prepared rough sketches of the same. LW.15-Inspector of police, III Town L&O P.S, Rajahmundry examined the witnesses and recorded their statements and photographed the scene through LW.8-G.Murali. On 6.1.2014 at 4.00 AM LW.14 arrested the accused at Lalacheruvu junction in Rajahmundry in the presence of mediators. The accused confessed the offence that he committed against the victim and it was recorded under the cover of mediators report. In pursuance of the confession made by the accused, his clothes which have been already washed and dried have been seized under the cover of a separate mediators report. LW.14 forwarded the material objects to FSL, Hyderabad for chemical analysis and obtained report. LW.15 took up further investigation as LW.14 was transferred to Korukonda. LW.11-Dr.V.Lakshmanarao, Civil Surgeon,
Specialist, District Hospital, Rajahmundry examined the victim and issued his report. LW.12-Dr.B.Surendra Babu, consultant, Urologist & Genito Urinary
Surgeon Professor & Head Urology, Government General Hospital, Kakinada examined the accused and issued potency certificate. Hence the charge sheet.
5. The learned III Addl. Judicial Magistrate of First Class,
Rajamahendravaram taken cognizance of the case under Sections 376(2)(i)
IPC and Sec.10 of POCSO Act, 2012 against the accused. On appearance of the accused before the said court, the copies of case documents are furnished to him under section 207 of Code of Criminal Procedure and the learned Magistrate by virtue of a committal order dated 17.5.2016 5 Fair committed the case to this court and there upon it has been assigned with
POCSO Sessions Case number. Accused was on bail earlier before the committal court. But later he absconded and NBW was issued and it was executed as such he has been in judicial custody since 3.5.2016.
6.On production of the accused before this court and on following the procedure under Sec.228(1)(b) of Cr.P.C, this court framed charges under sections 376(2)(i) IPC and sections 5(m) r/w 6 and Sec.10 of the POCSO Act against the accused and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried.
7.During the course of trial, on behalf of the prosecution, PWs.1 to 12 are examined and Exs.P.1 to P.14 are marked and MOs.1 to 5 are marked. After closure of the evidence of prosecution, the accused is examined under
Section 313 Cr.P.C with reference to incriminating circumstances appearing in the evidence let in by the prosecution for which he denied the incriminating circumstances and stated that he has defence witnesses and that he is filing written statement. The contents of the written statement of the accused are as follows:
He has nothing to do with the case and he is falsely implicated. He is innocent. He do not know the victim and he never saw her. On the date of 31.12.2013 on the eve of New Year he consumed alcohol and fallen by the side of the divider and his mother and younger brother took him to his house and after two days, the police took him to the station and implicated him falsely. Previously the mother of the victim and his mother had quarrels and his mother lodged a report in III Town L&O P.S. The police called his mother and mother of the victim and chastised the mother of the victim. Taking advantage of the same, a false case is foisted against him.
8. The accused in furtherance of his defence examined DW.1. When the 6 Fair case was coming for arguments, the prosecution has filed a petition under section 216 Cr.P.C in Crl.MP No.916/2017 to add the charge under penetrative sexual assault and this court passed a reasoned order and framed the charge under sec.5(m) r/w 6 of the POCSO Act against the accused and explained the same to him for which he pleaded not guilty and claimed to be tried. In view of the addition of the charge framed, this court has given an opportunity to the prosecution as well as to the defence to recall the witnesses if they are willing to do so and the prosecution reported no further evidence to recall and the defence counsel filed an application to recall PW.1 and this court allowed the same and PW.1 is further cross examined.
9. The recording of the evidence of the victim could not be completed within one month from the date of taking cognizance of the case as contemplated under sec.35(1) of POCSO Act for the reason that the learned
Magistrate having taken cognizance on 25.7.2014 committed PRC to this
court by virtue of a committal order dated 17.5.2016 and the committal records are transmitted to this court with delay. The case has been numbered as POCSO sessions case in the month of June, 2016. After that the police took several adjournments to serve summons and later brought to the notice of the court that the accused is in committal custody. This court secured his presence by issuing proceedings to central jail and he taken time to engage the advocate and after framing of charges on 24.11.2016, the accused is not ready for fixing trial schedule and on 19.1.2017 the trial schedule has been fixed commencing from 2.2.2017. The prosecution has taken time to produce the witnesses and later come up with application to frame additional charge. Under the circumstances there is delay. Further this is a court which has been entrusted with special jurisdiction under various statutes. This court has been dealing with cases under Protection of Children from Sexual Offences Act, Narcotic Drugs and Psychotropic Substances Act 7 Fair and Electricity Act. Apart from the above this court has been dealing with the cases under Motor Vehicles Act, Civil Appeals, Criminal Appeals, all types of civil suits and various categories of cases. Pendency of the cases on the file of this court under special jurisdiction is also very high. It becomes impracticable to post the matter within one month from the date of taking cognizance and to comply all the necessary formalities before fixing the trial schedule. So it has become totally impracticable to record the statement of the victim within one month from the date of taking cognizance and to dispose the matter within one year as contemplated under sec.35(2) of the
Act. However the matter is being disposed of expeditiously.
10. Heard both sides.
11.Now in deciding the charges framed against the accused the points that arise for consideration are:
1. Whether the prosecution has proved that the victim is a child within the meaning of section 2(d) of the POCSO Act?
2. Whether the prosecution has proved that on 1.1.2014 at 12.00 to 12.30 AM at the house of the victim, the accused made sexual assault against the victim in the manner as alleged?
3. Whether the prosecution has proved that the accused committed rape and penetrative sexual assault on the victim as alleged by the prosecution?
4. Whether the prosecution has proved the charges framed against the accused beyond reasonable doubt?
12.Points 1 to 4:
To bring home the guilt of the accused, the prosecution has examined as many as 12 witnesses. PW.1 is the mother of the victim who deposed that on 31-12-2013 she went to church at about 11.30 PM during night. She asked her daughter, son and Hema Rani to sleep in the house by closing the doors.
At about 12.10 AM she returned from the Church. She found her children weeping at the entrance of the door of the house. She found her daughter in the kitchen room without any clothes on her body. She found the accused 8 Fair fallen upon her daughter and her son was pulling the accused by catching his legs. The accused was found without any clothes on his body. She pulled up the accused by catching his tuft and identified him. Before going to Church she found him in drunken state along with others near a mutton stall opposite to her house. She found injuries on the nose and face of her daughter and also scratches on her neck. She slapped the accused. Accused beaten her and thrown her and absconded. She came out into the street and raised big cries. The neighbourers stopped the accused but accused was able to abscond. She asked to her daughter as to what happened and she told her that somebody knocked the door and that she opened the door thinking that she knocked the door and that the accused removed the blanket on the bed and took her into the kitchen room and that accused beaten her son and niece and removed the clothes of her daughter in the kitchen and tried to rape her. She provided some first aid to her daughter with powder and cloth during that night. She contacted her parents and contacted her husband who is at Bangalore and as per their advise she gave statement before police on next day. Ex.P.1 is her statement. She put her thumb impression on Ex.P.1.
Police took her daughter to hospital. She was examined by police on the same day of Ex.P.1.
13.PW.2 is the victim and she is aged about 10 years as on the date of her examination and this court posed certain questions to her to ascertain whether she is in a position to give evidence and whether she is capable of understanding the rationale of the questions and after satisfying that she is capable of understanding the rationale of questions permitted the prosecution to examine her as a witness. She in her chief examination deposed that Pw.1 is her mother. Lakshmanarao is her elder brother. She know the accused. She is studying 3rd class at present. While she was studying in UKG on one day her mother went to Church. She herself, her elder brother and Chitti were in the house. Somebody knocked the door. Her elder brother opened the door thinking that her mother came. One uncle 9 Fair entered into the house and beaten her elder brother and Chitti. The uncle removed blanket and took her into kitchen room. She cannot identify the said uncle. He removed her clothes from her body. He undressed half of his clothes. Her elder brother caught hold of the legs of the said uncle. Uncle thrown his elder brother with his legs. Uncle fallen up on her and he was moving up on her to front and back. He bite on her cheek and also slapped her. In the meantime her mother came there and removed the uncle by catching hold of his tuft. Her mother dragged the uncle to outside. Uncle thrown away her mother and absconded. Her mother raised cries. All the persons gathered there and caught hold of the uncle but uncle escaped by throwing away the persons. Later she was taken to hospital. Police examined her at her house. She revealed the incident to her mother.
14. PW.3 is the brother of the victim and he is also a child witness and he is aged about 11 years as on the date of his examination and this court posed certain questions to him to ascertain whether he is in a position to give evidence and whether he is capable of understanding the rationale of the questions and after satisfying that he is capable of understanding the rationale of questions permitted the prosecution to examine him as a witness. He in his chief examination deposed that he never saw the accused previously (witness saw the accused in open court by the side of the curtain and deposed the same). On 31-12-2013 during night his mother at about 11.30 PM went to Church. He himself, PW2 and Chitti were present in the house. They were sleeping by bolting from inside. Somebody knocked their door. He opened the door thinking that his mother came. Then one uncle entered into the house and beaten him and Chitti. The said uncle took his younger sister into kitchen. He cannot identify the said uncle. The uncle removed the clothes of his younger sister in the kitchen and undressed himself for half extent. The uncle slapped his younger sister and kissed her and bite her he pulled the legs of the uncle and the uncle thrown him away 10 Fair by legs. Then his mother came there. His mother caught hold of the tuft of the uncle. Uncle thrown away his mother and absconded. On hearing their cries, the neighbourers gathered there. When they caught hold of the uncle he absconded. He reveled what all happened to his mother. His younger sister was taken hospital subsequently. Police examined him.
15. PW.4 is a witness to the occurrence and she deposed that on 31.12.2013 at 12.15 a.m during midnight she was coming from Church. She went along with P.W.1 to Church. She herself and P.W.1 were returning from the Church and P.W.1 was entering into her house. She proceeded towards her house. She heard the cries of P.W.1. Then she went into the house of
P.W.1 and found the accused in naked condition. She found the accused in half dress and P.W.1 caught hold of his tuft and also she assisted P.W.1 in bringing out the accused to outside. she found P.W.2 with bleeding on her lips. she brought out P.W.2. She was weeping and was shivering. When they tried to keep the accused by tying him to a pole he thrown them and absconded. P.W.1 went to police station and lodged report. On the next day she was examined by police. Witness says that on 2.1.2014 she was examined by police.
16. Turning to the evidence of PW.5 he is also a witness to the occurrence and she deposed that she saw the accused on the date of incident. On 31.12.2013 after 12.00 hours during midnight she was sleeping. On hearing the cries she came out. She found P.W.1 dragging the accused by catching his tuft to outside. Then she asked her as to what happened. She found some bleeding on the face of P.W.2. P.W.1 informed her that accused made an attempt to commit rape against P.W.2. The persons who gathered there beaten the accused. The accused absconded. She was examined by police.
17. PW.6 is the photographer and he deposed that on 2.1.2014 at the 11 Fair request of Woman Head constable he took photographs in Krishnanagar from a house and also recorded video-graphing about the statement of one girl.
He handed over the same to police. Ex.P.2 is eight photographs with CD.
Ex.P.3 is the CD for recording statement.
18. PW.7 is mahazar witness to the arrest of the accused and his evidence is that on 02.01.2014 he received a phone call from III Town police while he was in his office to act as mediator to observe the scene of offence. He along with police went to a house bearing D.No.17-11-18 and in his presence police observed the scene of offence. Police took the photographs of the scene of offence. He scribed observation report. Ex.P.4 is observation report. Again on 6.1.2014 police called him at 3.00 a.m and he went to police station. They proceeded towards Lalacheruvu junction and the police found one person and questioned him and he is the accused. Police arrested the accused and recorded his confession. Police recorded his confession and in pursuance of his confession they went to the house of the accused at 6.00 a.m and the police seized cloths of the accused. MO.1 is the pant and MO.2 is the shirt.
He scribed two mahazars. Ex.P.5 is the arrest mahazar (relevant portion leading to recovery). Ex.P.6 is the seizure mahazar. He signed on both mahazars.
19. Coming to the testimony of PW.8, he is medical officer who examined the victim and according to him on 1.1.2014 at the requisition of S.H.O III
Town police station he examined the victim girl who was produced before him by WPC Ch. Naga Durga Mani and found that there were no injuries on her person. Witness says that there was swelling on the right side of upper lip 1 x 1 cm with abrasion on mucus membrane of ½ cm. Mucus membrane was pink in colour. The injury is aged about less than 24 hours prior to his examination. There were no other external injuries on her body or private parts. He collected specimens and sent to RFSL and he received RFSL report.
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Basing on the report he is of the opinion that there was no rape occurred on the victim. Ex.P.7 is the wound certificate. Ex.P.8 is the RFSL report. Ex.P.9 is the final opinion.
20. PW.9 is the person who claimed to have examined the accused and he deposed that on 24.1.2014 the patient by name Shaik Ahamed Valli was admitted in GGH, Kakinada. He was discharged on 28.1.2014. He was brought to hospital by police for the purpose of potency examination but they could not conduct any test as the accused went out. Though he attended before psychiatrist department and medicine department but he was not brought before him. He addressed a letter to Superintendent. Ex.P.10 is the said letter. He did not issue any opinion.
21. PW.10 is the then woman head constable, III Town L&O P.S,
Rajahmundry and she deposed that on 2.1.2014 at the request of Training
D.S.P she recorded the statement of P.W.2 in Krishna Nagar at her house under video-graphing. She signed the statement.
22. PW.11 is the then Deputy Superintend of Police and he is the investigating officer and according to his evidence on 1.1.2014 at about 8.00 p.m P.W.1 along with victim came to police station and she gave a statement.
He registered the statement as a case in Crime No.2/2014 under 376 (2)(i)
IPC and Sec.12 of POCSO Act. Ex.P.11 is the original FIR. He dispatched copies of FIR to all concerned. He found some injuries on the person of the victim. In the presence of woman PC he recorded the 161 Cr.P.C statement of
P.W.1 and sent victim to the hospital for medical examination. As it was late night he could not go to the scene of offence. On the next day at about 2.00 p.m he along with the mediators i.e., P.W.7 and R. Seshu visited scene of offence along with SI, staff and woman PC. He recorded the statement of victim with the help of woman police constable under video-graphing. He 13 Fair examined the scene of offence and got photographed the same. He seized the cloths of the victim at the scene of offence under the cover of panchanama and prepared rough sketch of the scene of offence. MO.3 is the yellow colour top of victim. MO.4 is the white colour underwear of the victim with pink dots. MO.5 is the sky blue colour of shirt of victim. Ex.P.12 is the rough sketch of the scene of offence (inside). Ex.P.13 is another rough sketch of scene of offence (outside). He got drafted observation report of the scene of offence. At the scene of offence he examined P.W.3, P.W.4, K.
Lakshmanarao, P.W.5 and K. Bhaskara Reddy. Then he returned to the police station. On the next day he collected photographs from the photographer and recorded his statement (P.W.6). On 6.1.2014 at about 3.00 a.m he arrested the accused at Lalacheruvu junction in the presence of mediators on credible information about his presence there. He recorded the confession of the accused in the presence of mediators. In pursuance of the confession given by the accused he went to the house of the accused and seized his cloths. He brought him to the station and forwarded him for remand. On 25.1.2014 he forwarded the material objects under letter of advice to FSL,
Hyderabad. Ex.P.14 is the copy of letter of advice. On his transfer subsequent investigation was taken up by regular CI.
23. Turning to the evidence of PW.12, he is successor of PW.11 and his evidence is that on 1.2.2014 he took up investigation from PW.11. On 30.5.2014 he obtained FSL report. On 16.6.2014 he obtained final opinion from the medical officer, Rajahmundry and after completion of investigation he filed charge sheet.
24. Turning to the defence of the accused, as this court already pointed out, the accused examined DW.1 and she is no other than his mother and she deposed that about five years back she herself and PW.1 had quarreled in connection with water tap. She removed her water vessel. She (DW.1) 14 Fair questioned her attitude. She (PW.1) scolded her. She also scolded her. PW.1 is a prostitute. PW.1 beaten her at the time of quarrel. She went to III Town
P.S. Police came to her house. Police scolded PW.1 and obtained bonds from them. She know Rekha mandil who is Muslim and she is also prostitute.
Rekha Mandil (PW.4) and PW.1 are close friends. Accused used to consume alcohol. He is mason. On 31.12.2013 during night accused did not come back to the house. Her husband and two sons searched for accused and found him sleeping in a street. They brought him to her house. On 1.1.2014 at 4.00 PM police came to her house and took away the accused. She intimated the same to her younger son. They went to III Town Police Station and police denied that they brought the accused. They were there in the police station upto 10.00 PM. For three days police did not show the accused to them. In the 4th day they shown the accused to them. PW.1 filed false case due to earlier disputes with them.
25. The learned Addl. Public Prosecutor contended that PW.1 mother of the victim, PW.2-victim, PW.3 brother of the victim, Pws.4 and 5-neighbourers who witnessed the incident fully supported the case of the prosecution. The accused admitted that he consumed alcohol at the time of incident and his defence that he fallen down near a divider and later on account of earlier disputes he is falsely implicated is not tenable. The testimony of PW.2 has also support from the medical evidence with regard to the injuries received by her on her lip. According to the evidence of PW.1 the accused committed the act of sexual assault as such the prosecution has proved all the charges.
The presumptions as contemplated under the POCSO Act have application to the case on hand and the investigation is also on right lines as such the accused is liable to be convicted.
26. The learned counsel for the accused contended that there were previous disputes between PW.1 -mother of the victim and DW.1- mother of 15 Fair accused. DW.1 supported the defence of the accused that she had earlier disputes with PW.1 which compelled PW.1 to file a false case. PW.2 victim and
PW.3 brother of the victim did not speak about the accused and they did not identify the accused before this court. According to them one uncle committed the offence against PW.2. They did not speak the name of the accused. They did not identify the accused in the court. So their evidence has no corroboration from PW.1. PW.1 invented the name of the accused and falsely deposed against him. Pws.4 and 5 are the followers of PW.1 who blindly supported the case of the prosecution. The house of PW.1 is located in a busy area and the incident alleged to be happened during mid-night and on the next day the January 1st – new year festival and if really the victim and her brother made cries, it would have been audible to the neighbourers and they would have rushed to the scene of offence. So the evidence of Pws.1 to 3 cannot stand to the test of scrutiny and their evidence is against the probabilities. There are several omissions in the testimony of PW.1, Pws.3 and 4 which are elicited from the evidence of investigating officer and for the reasons best known they improved their case on material aspects and it shows that their evidence is false. As their evidence is suffering with serious omissions, no value can be attached to their testimony. The medical evidence does not prove the charges framed against the accused with regard to the allegations of rape and penetrative sexual assault. Virtually the accused had no occasion to enter into the house of PW.2 in drunken state and he had no necessity to enter into the house of PW.2 and on account of new year festival he consumed alcohol and fallen at a divider and taking advantage of the earlier disputes, false case is foisted against him. In support of his defence he relied upon the evidence of DW.1 who is the mother of the accused. The investigation is manufactured in the police station and the evidence of Pws.6 and 7 the photographer and the mahazar witness to the observation of the scene of offence is not at all believable. The investigation is not at all on right lines. It is very easy to invent this type of 16 Fair investigation and to make the victim to depose against the accused. As there was no charge originally under section 5(m) of the POCSO Act, the presumptions contemplated under section 29 of the Act have no application.
The prosecution did not produce any proof to show the potency of the accused to commit any sexual assault and the medical evidence does not prove that the accused was subjected to any potency test. He argued that it is a fit case to acquit the accused and the testimony of Pws.1, 4 and 5 is not believable as such the accused is entitled for acquittal.
27. In the light of the rival contentions advanced and the points framed for determination firstly this court would like to deal with as to whether the victim is a child within the meaning of section 2(d) of the POCSO Act.
28. According to section 2(d) of the POCSO Act ‘child’ means any person who did not complete the age of 18 years. Here the testimony of PW.1 is that the victim is aged 10 years and she is studying 3rd class as on the date of her evidence. PW.2 deposed that her age is 10 years and she is studying 3rd class. Their evidence is not challenged during cross examination on behalf of the accused disputing the age of the victim. Though the prosecution did not produce the original date of birth or any medical evidence to show the age of the victim but the fact remained is that the victim deposed that she is aged about 10 years and there is no variance with regard to the age of the victim with any other record and probably for this reasons accused did not dispute the age of the victim. Though the prosecution did not produce any age proof with regard to the age of the victim but the oral evidence is cogent and believable and there is nothing in the defence of the accused to dispute the age of the victim. Hence I am of the considered view that the prosecution is able to prove that the victim is a child within the meaning of section 2(d) of the POCSO Act.
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29. Now this court has to see as to whether the evidence adduced by the prosecution is convincing, believable and whether it is inspiring any confidence in the mind of the court. To appreciate the same, it is necessary to look into the testimony of Pws.1 to 5 to look into the probabilities and trustworthiness if any of the prosecution witnesses.
30. One of the contentions that is advanced is that Pws.2 and 3 did not identify the accused. Turning to the evidence of PW.2, admittedly she did not speak the name of the accused as the uncle who is alleged to have entered into her house. But she deposed that she know the accused. Her evidence is that one uncle entered into the house in the absence of her mother and made sexual assault. Similar is the testimony of PW.3 and he did not identify the accused. Though the evidence of Pws.2 and 3 is not directly against the accused but their evidence is quietly proving that one male person entered into the house and made sexual assault against PW.2. Simply because Pws.2 and 3 who are aged about 10 years could not speak or could not establish the identity of the accused and simply because they deposed the culprit as that of uncle, their evidence cannot be thrown out. So their evidence established that sexual assault is made in the house of the victim against her in the presence of PW.3. To ascertain who is the real culprit, it is the bounden duty of the court to look into the testimony of Pws.1, 4 and 5. PW.1 is a direct witness to the occurrence. Even Pws.4 and 5 are also direct witnesses to the occurrence to some extent. Now it is a matter of appreciation to decide whether their evidence is believable or not.
31. During cross examination PW.1 deposed that the area where they are residing is busy centre with traffic movements. It is true that there was heavy public movement during the night of 31.12.2013 as the next day is
January first of the New Year. Her house is surrounded by several residential 18 Fair houses. The cries from her house is audible to neighbourers. She denied that during the night of 31.12.2013 she did not go to church. She belong to
Settibalija caste and she is Hindu by religion. She saw the accused in 2 or 3 occasions prior to incident. She denied that previously the accused resided in their street with his family and there were some quarrels between her and mother of the accused. She denied that the mother of the accused scolded her about her character as such the matter went to III Town Police and that the police pacified the issue in that occasion. She further denied that on 31.12.2013 the accused consumed alcohol and he fallen down at road divider and taking advantage of the same they filed a false case against him.
She denied that she did not state before police that her children and her niece were weeping by the time she returned from the Church and that she did not state before police that accused beaten her niece and her son. She further denied that she did not state before police that she slapped the accused and that the accused beaten her. She went to the Church along with one Rekha who is her neighbourer. She stated so before police. She further denied that she did not state before police that she applied powder and cloth as first aid and that the accused did not enter into her house and did not commit anything against her children including her daughter and that she fabricated a false story.
32. Coming to the testimony of PW.4 during cross examination she deposed that she did not accompany P.W.1 to the Church but she met her in the Church and both of them were returning to home. She is Muslim. She denied that she did not go to Church and P.W.1 did not met her in the Church and that she did not state before police that she found the accused in naked condition in the house of P.W.1 and that she brought the accused to outside along with P.W.1. She denied that she did not state before police that she brought out P.W.2 and she was weeping and shivering. Her house is nearer to the house of P.W.1. The distance between her house and Church is half 19 Fair kilometer. The neighbourers also gathered there after she went into the house of P.W.1. She cannot say their names. She denied that she did not state before police that they tried to tie the accused to the pole and that she is not residing in Rajahmundry and that she is deposing false to help the
P.W.1. She further deposed that she did not find the accused in the house of
P.W.1 and that when the accused fallen down at divider by consuming alcohol they filed a false against him.
33. Coming to the evidence of PW.5 during cross examination she deposed that the huge cries from the house of P.W.1 are audible to her house. Prior to the cries of P.W.1 they did not hear any cries from her house. She denied that she did not find the accused at the scene and that she is deposing false to help P.W.1.
34.It is to be noticed that Pws.2 and 3 during probing cross examination withstood the cross examination. Pw.2 in cross examination deposed that her mother did not tell her as to how to give evidence. She is not briefed by anybody to give evidence. She denied that nothing was happened in the hands of uncle and she is deposing as tutored by her mother. Nothing is elicited during the cross examination of PW.2 to disbelieve the incident spoken by her. Turning to the evidence of PW.3 during cross examination he deposed that nobody asked him as to how to give evidence. So he also withstood the probing cross examination and there is nothing in his evidence to disbelieve the incident spoken by him. Their testimony categorically establishes the sexual assault made against PW.2. PW.1, Pws.4 and 5 categorically testified the incident against the accused.
35. Now it is a matter of appreciation to decide whether there are any omissions in the evidence which throws any doubt to disbelieve their testimony. Coming to the testimony of PW.11-the then Probationary DSP, III
Town L&O P.S, Rajahmundry, he deposed in cross examination that P.W.1 did 20 Fair not state before him about the weeping by her niece by that time she returned from Church. She did not state before him that accused beaten her son and niece. She did not state before him that she slapped accused and accused beaten her. She did not state before him that she applied powder to the victim as First aid. P.W.1 belonged to settibalija caste. She did not state
before him that she had faith in Christianity but she stated before him that
she went to Church. He further deposed in cross examination that PW.4 did not state before him that she entered into the house of P.W.1 and found the accused in naked condition and that she brought out the victim from the house.
36. It is to be noticed that even if the above said omissions that are attributed to Pws.1 and 4 are excluded from consideration, the substratum of the case of the prosecution is not going to be changed. It is not the omission on the part of PW.1 to speak that he found the accused laid over the victim and was committing sexual assault. It is not the omission from the testimony of Pws.4 and 5 that they found the accused in the house of the victim and
Pw.2. The so called omissions that are attributed to Pws.1 and 4 and that are elicited from the mouth of PW.11-the investigating officer are not the omissions which amounts to contradictions and they are not changing the case of the prosecution. Even if they are excluded from the consideration, the rest of the evidence of Pws.1 and 4 remained intact. So in so far as the allegation alleged against the accused is concerned, the case of the prosecution is not suffering with any omissions.
37. Simply because PW.1 belongs to Hindu community, it does not mean that she is prevented from going to Church. So the contention of the accused that PW.1 had no occasion to go to Church is not tenable. Here the testimony of PW.1 has corroboration from the evidence of PW.4 to speak that she went to Church during the intervening night of 31.12.2013/ 1.1.2014. Apart from 21 Fair this, this court has no reason to disbelieve the testimony of Pws.4 and 5.
Absolutely they have no reason to depose false against the accused. The defence of the accused that they falsely deposed against him is not tenable.
This court has gone through the testimony of DW.1 who is the mother of the accused and who also made an attempt to assassinate the character of PW.1.
During cross examination PW.1 denied that her character is not good. DW.1 gone to the extent of deposing that he know Rekha Mandil and she is a prostitute. Rekha Mandil is examined as PW.4. Such allegations are not put forth before PW.4 when she entered into the witness box. DW.1 had no proof to show the report given by her against PW.1. So absolutely DW.1 has no basis to brand Pws.1 and 4 as prostitutes. It is very difficult to say that there were any disputes between Pw.1 and DW.1. No piece of paper is filed in this regard. So the defence of the accused remained as mere allegations. So the testimony of DW.1 with regard to the so called earlier disputes cannot stands to the test of scrutiny. If the so called disputes between PW.1 and DW.1 went to the notice of the police, it would have been borne out by record. Viewing from any angle, there are no probabilities to say that on account of earlier disputes between PW.1 and DW.1, accused is falsely implicated. The contention of the accused that investigation is manufactured in the police station is not tenable. The investigating officer followed the provisions of the
POCSO Act by getting recorded the statement of the victim through women head constable.
38. It is to be noticed that section 29 of the POCSO Act contemplates certain presumptions when a person is prosecuted for the offences under sections 3, 5, 7 and 9 of the Act. Here the prosecution of the accused under section 9 of the Act is on the basis of original charge framed. Subsequently this court framed a charge under section 5(m) r/w 6 of the Act. The contention of the accused that the presumption under sec.9 of the Act has no application because originally he was not charged under section 5(m) 22 Fair punishable under sec.6 of the Act deserves no merits. Ultimately it is a matter of appreciation to decide whether the said presumptions are in favour of the prosecution in the facts and circumstances.
39. In so far as the manner of the incident as spoken by Pws.1 to 5 is concerned, absolutely this court has no reason to disbelieve their testimony.
It is a case where the testimony of PW.1 has corroboration from Ex.P.1 and the evidence of PW.4. PW.5 deposed that she found PW.1 dragging the accused outside by catching his tuft. So the accused has no business to enter into the house of Pws.1 to 3. Though Pws.2 and 3 did not speak the name of the accused and they deposed the identity of the culprit as uncle but there is sufficient and cogent evidence in the form of Pws.1, 3 and 4 to establish that the so called uncle is accused.
40. The testimony of PW.2 has corroboration from the medical evidence in so far as the receipt of injury on her lip is concerned. According to the evidence of PW.8 the medical officer, such injury can be possible by fell on the hard surface. Even if that is taken into consideration, it is quite natural to assume that the victim received such an injury by bite of the accused or by falling down when the accused made a sexual assault against her. So her evidence has corroboration with regard to the injury sustained.
41. Admittedly it is a case where the medical evidence does not prove that the victim was subjected to rape and penetrative sexual assault. The testimony of PW.1 that she found the accused moving on the victim does not mean that he made penetrative sexual assault. If there is any penetrative sexual assault in the private parts of the victim, definitely it would have been supported by medical evidence. So the evidence is lacking with regard to the allegations of penetrative sexual assault. Here is a case that one of the charges is under section 376(2)(i) IPC which deals with the offence of rape 23 Fair against a woman who is under the age of 16 years. The charge under section 5(m) punishable u/sec.6 of the Act deals with the offence of penetrative sexual assault on a child below the age of 12 years. Here the victim is aged about 6 years at the time of incident. Here the penetrative sexual assault is not proved but the evidence on record categorically proves the attempt made by the accused to commit rape and penetrative sexual assault against the victim. The evidence on record goes to show that though the accused made assault on the victim by removing her clothes and by undressing himself upto his knees but he could not succeed in having sexual act with the victim. Hence I am of the considered view that the prosecution has failed to prove the act of coitus. The medical evidence is not in favour of the prosecution in so far as the allegations of rape and penetrative sexual assault. But the evidence goes to establish that accused with a deliberate intention to have sexual intercourse with the victim made such an attack. So it is nothing but a deliberate attempt made by the accused against the victim to commit rape and penetrative sexual assault. The relevant provisions in the Code of Criminal Procedure taken care of a situation when a substantive offence alleged against the accused is not proved but the evidence proves the attempt to commit such an offence, there need not be any specific charge in this regard. According to section 222(3) of Cr.P.C, when a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. So the fact is that the accused made an attempt to commit rape and made an attempt to commit penetrative sexual assault in the aggravated form. So though there is no charge for attempt of rape and penetrative sexual assault but in the light of the above provisions of law if the evidence is convincing, accused can be held responsible for such an offence. It is to be noticed that section 29 of the POCSO Act runs as follows:
Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit 24 Fair any offence under sections 3, 5, 7 and 9 of the Act, the Special Court shall presume that such person has committed the offence, unless the contrary is proved.
42.So the above said presumption has application when an offence under sections 3, 5, 7 and 9 of the Act is alleged. The evidence on record is sufficient to say that the accused made an attempt to commit rape and penetrative sexual assault against the victim. Here with the aid of section 29 of the Act, it can safely be held that accused made an attempt to commit penetrative sexual assault against the victim. The presumption under sec.29 of the Act is further strengthening the case of the prosecution. Apart from this section 30 of the Act runs as follows:
“Presumption of culpable mental state: (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the special court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation:-- In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact”.
43. Here the presence of the accused is categorically established in the house of PW.2 with the evidence of Pws.1, 4 and 5. It goes to show that the accused with a culpable mental state entered into the house of the victim.
The accused miserably failed to rebut the presumption under sections 29 and 30 of the POCSO Act.
44. It is to be noticed that there is no merit in the contention of the accused that if the victim raised any cries, it would have been audible to neighbourers. When the victim was in a room and victim was a child, there is 25 Fair no hard and fast rule that both Pws.2 and 3 should cry loudly. There is no merit in the above said contention. Viewing from any angle, absolutely this court has no tenable defence on the part of the accused to explain about his presence in the house of the victim. His defence that he consumed alcohol and fallen by the side of divider and later he is implicated falsely cannot stands to any reason. The medical evidence especially in the form of PW.9 means that though the accused was brought to hospital for the purpose of potency examination but the accused went out as such they could not conduct any examination. Under the said circumstances, he could not issue any opinion. In a case of this nature, there is no hard and fast rule that the prosecution should prove that the accused is capable of performing sexual act. Here the allegations that are proved are only attempt of rape and sexual assault. Under the circumstances though the prosecution did not produce any potency certificate, it does not mean that the case of the prosecution is false. Virtually it is not the defence of the accused that he is impotent and he is not capable of performing of sexual act. The evidence of PW.9 goes against the accused that accused went out without making himself available for potency examination. There is no cross examination of PW.9. Hence the evidence further goes against the accused that he evaded to attend before the medical officer for potency examination. Even otherwise non-production of any potency report relating to the accused to show his sexual potency is of no use to his defence because it is never his defence that he is ailing from any physical and mental defects so as to incapacitates him from performing any sexual act. Hence such contention in my considered view is not at all tenable. So the evidence on record in the place of original charge under sections 376(2)(i) IPC and additional charge under sec.5(m) r/w 6 of the
POCSO Act establishes attempt made by the accused. So in my considered view the evidence on record goes to prove the offence under section 376(2)
(i) r/w 511 IPC and further goes to prove the offence under section 5(m) r/w 6 and r/w 18 of the Act.
26 Fair
45. Apart from this, there is a charge under section 10 of the POCSO Act which corresponds to allegation that the accused made sexual assault on the victim who is below the age of 12 years. So the offence under sec.10 of the
Act corresponds to the allegation under section 9(m) of the Act. Here the accused attacked the victim and removed her clothes and it is nothing but a sexual assault within the meaning of section 7 of the POCSO Act. So the accused came into physical contact with the victim by removing her clothes and making himself undressed upto the knees. So the evidence on record further categorically proves the charge under section 10 of the POCSO Act. In the light of the above, I hold that the prosecution is able to prove the offence under section 376(2)(i) r/w 511 IPC and section 5(m) r/w 6 r/w 18 of the
POCSO Act and charge under section 10 of the POCSO Act against the accused beyond reasonable doubt.
46. In the result, the accused is found guilty of the offences under sections 376 (2)(i) r/w 511 IPC and sec. 5(m) r/w 6 r/w 18 of the POCSO Act and further charge under sec.10 of the POCSO Act and he is convicted of the same under section 235(2) Cr.P.C.
Dictated to the Stenographer (Gr.III), transcribed by her, corrected and pronounced by
me in open court, this the 18th day of August, 2017.
I ADDITIONAL SESSIONS JUDGE,
RAJAMAHENDRAVARAM
The accused is questioned with regard to his right of appeal and his means to engage the advocate in the appellate court and about the quantum of sentence to be imposed. The accused represented that he know that he is having right of appeal but he has no financial means to engage the advocate in the appellate court and the court may take steps to appoint an advocate to him in the appellate court so as to file an appeal. With regard to the quantum of sentence, he represented that he has nothing to say. Having 27 Fair regard to the nature of the offence committed by the accused and looking into the facts and circumstances of the case this is not a fit case to exonerate the accused under the Probation of Offenders Act. Section 42 of
POCSO Act runs as follows:
“Where an act or omission constitutes an offence punishable under this Act and also under Sections 166-A, 354-A, 354-B, 354- C, 354-D, 370, 370-A, 375, 376, 376-A, 376-C, 376-D, 376-E or Section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”
So, here the act committed by the accused attracts the offences under sec.376(2)(i) r/w 511 IPC as well as Sec.5(m) r/w 6 r/w 18 of POCSO Act. The punishment provided for the charge under sec.376(2)(i) IPC is rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and he shall also be liable to fine. The punishment under sec.6 of POCSO Act is rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and he shall also be liable to fine. So the punishment prescribed under sec.376(2)(i) IPC is more when compared to Sec.6 of
POCSO Act. In view of section 42 of the POCSO Act this court has to consider sec.376(2)(i) to impose punishment against the accused. According to section 511 IPC, the punishment provided is imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life, or, as the case may be, one-half of the longest term of imprisonment provided for that offence. Similar is the situation under sec.18 of the POCSO Act. So here if the substantive offences are proved against the accused minimum punishment is ten years which may extend to life. Section 376(2)(i) is more severe as it provides the person’s remainder life. However the fact is that an attempt to commit the above said offences is proved by the prosecution. So this court is left with two options to provide punishment
for the accused that is one-half of the imprisonment for life, or one-half of
28 Fair the longest term of imprisonment provided for the offence. The longest punishment under sec.376(2)(i) is rigorous imprisonment for ten years alternative to imprisonment for life. Considering the facts and circumstances,
I feels that the ends of justice will meet if the accused is imposed with rigorous imprisonment for five years which is one-half of the maximum punishment alternative to one half of the imprisonment for life provided for the offence. I further feels that in so far as the charge under section 10 of the
POCSO Act is concerned which is corresponding to the offence under sec.9(m) of the Act, the ends of justice will meet if the accused is sentenced to suffer minimum punishment as provided under sec.10 of the Act.
In the result, in so far as the offence under section 376(2)(i) r/w 511
IPC and sec.5(m) r/w 6 r/w 18 of the POCSO Act is concerned in view of the section 42 of the POCSO Act, he is sentenced to suffer rigorous imprisonment for FIVE years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for Six months. In so far as the charge under section 10 of the
POCSO Act is concerned he is sentenced to suffer rigorous imprisonment for
FIVE years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for Six months. The period of remand undergone by the accused during the course of investigation (from 6.1.2014 to 31.5.2014) as well as during committal proceedings and trial (from 3.5.2016 to 18.8.2017 i.e. till date) shall be set off against the substantive term of imprisonment.
MOs.1 to 5 shall be destroyed after appeal time is over and subject to the result of appeal if appeal is filed. In view of the representation made by the accused that he has no means to engage an advocate in the appellate court a letter is going to be addressed to the A.P. High Court Legal Services
Committee with a request to provide free legal aid to the accused so as to enable him to file an appeal in the appellate court. The substantive sentence imposed against him shall run concurrently.
Dictated to the Stenographer (Gr.III), transcribed by her, corrected and pronounced by
me in open court, this the 18th day of August, 2017.
29 Fair
Sd/- A.V.Ravindra Babu
I ADDITIONAL SESSIONS JUDGE,
RAJAMAHENDRAVARAM
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution:
PW.1: K.Renuka PW.2: Victim PW.3: K.Laxmanarao PW.4: Rekha Mandil PW.5: M.Sita PW.6: G.Murali PW.7: A.Adinarayanarao PW.8: V.Laxmanarao PW.9: Dr.B.Surendrababu PW.10: K.Jayalaxmi PW.11:K.Srinivasarao PW.12: M.Ramesh
For defence:
DW.1: SK.Fatheemunnissa
DOCUMENTS MARKED
For Prosecution:
Ex.P.1/--: Statement given to police by PW.1. Ex.P.2/--: Photos with CD (8 in number) Ex.P.3/--: Video (CD) Ex.P.4/--: Scene observation report Ex.P.5/--: Portion of mediators report dt.6.1.14 Ex.P.6/--: Mediators report dt.6.1.14 Ex.P.7/--: Wound certificate of victim Ex.P.8/ --: RFSL report Ex.P.9/--: Final opinion Ex.P.10/--: Letter with regard to potency test Ex.P.11/--: FIR in cr.NO.2/14 Ex.P.12/--: Rough sketch Ex.P.13/--: Rough sketch Ex.P.14/--: office copy of letter of advice.
For defence: Nil
Material Objects
MO.1 : Pant MO.2 : Shirt MO.3 : Yellow top MO.4 : Underwear MO.5 : Shirt
Sd/- A.V.Ravindra Babu
I ADDITIONAL SESSIONS JUDGE,
RAJAMAHENDRAVARAM
//t.c.f.b.o// 30 Fair
Superintendent 31 Fair
TABULAR FORM ANNEXED TO THE JUDGMENT IN SC No.95/2016 ON THE FILE OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF THE CASES UNDER THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 (-cum-I ADDITIONAL SESSIONS
JUDGE): EAST GODAVARI DISTRICT: RAJAMAHENDRAVARAM
1Sessions Case No. : POCSO SESSIONS CASE NO.95/2016 2Name of the PS: State rep. by its Inspector of police, III Town L&O P.S., Rajahmundry.
3Name of the Accused and Shaik Ahamadvalli alias Valli, S/o.Wahab, 21 particularsyears, C/Muslim, mason, R/o.D.No.17-24-8/5, Vangaveetivari street, behind Ratna Talli Pillala Hospital, Seetampeta, Rajahmundry.
4Date of offence: Intervening night of 31.12.2013 5Date of complaint: 01.01.2014 6Date of committal: 17.05.2016 7Date of appearance: 29.9.2016 8Date of commencement of trial: 02.02.2017 9Date of close of trial: 10.08.2017 10Date of Sentence of Order: 18.08.2017
ORDER: : In the result, the accused is found guilty of the offences under sections 376 (2)(i) r/w 511 IPC and sec. 5(m) r/w 6 r/w 18 of the POCSO Act and further charge under sec.10 of the POCSO Act and he is convicted of the same under section 235(2) Cr.P.C.
The accused is questioned with regard to his right of appeal and his means to engage the advocate in the appellate court ad about the quantum of sentence to be imposed.
In the result, in so far as the offence under section 376(2)(i) r/w 511 IPC and sec.5(m) r/w 6 r/w 18 of the POCSO Act is concerned in view of the section 42 of the POCSO Act, he is sentenced to suffer rigorous imprisonment for FIVE years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for Six months. In so far as the charge under section 10 of the POCSO Act is concerned he is sentenced to suffer rigorous imprisonment for FIVE years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for Six months. The period of remand undergone by the accused during the course of investigation (from 6.1.2014 to 31.5.2014) as well as during committal proceedings and trial (from 3.5.2016 to 18.8.2017 i.e. till date) shall be set off against the substantive term of imprisonment. MOs.1 to 5 shall be destroyed after appeal time is over and subject to the result of appeal if appeal is filed. In view of the representation made by the accused that he has no means to engage an advocate in the appellate court a letter is going to be addressed to the A.P. High Court Legal Services Committee with a request to provide free legal aid to the accused so as to enable him to file an appeal in the appellate court. The substantive sentence imposed against him shall run 32 Fair concurrently.
11Explanation for the delay: The learned Magistrate having taken cognizance on 25.7.2014 committed PRC to this court by virtue of a committal order dated 17.5.2016 and the committal records are transmitted to this court with delay. The case has been numbered as POCSO sessions case in the month of June, 2016. After that the police took several adjournments to serve summons and later brought to the notice of the court that the accused is in committal custody. This court secured his presence by issuing proceedings to central jail and he taken time to engage the advocate and after framing of charges on 24.11.2016, the accused is not ready for fixing trial schedule and on 19.1.2017 the trial schedule has been fixed commencing from 2.2.2017. The prosecution has taken time to produce the witnesses and later come up with application to frame additional charge. Under the circumstances there is delay. Further this is a court which has been entrusted with special jurisdiction under various statutes. This court has been dealing with cases under Protection of Children from Sexual Offences Act, Narcotic Drugs and Psychotropic Substances Act and Electricity Act. Apart from the above this court has been dealing with the cases under Motor Vehicles Act, Civil Appeals, Criminal Appeals, all types of civil suits and various categories of cases. Pendency of the cases on the file of this court under special jurisdiction is also very high. It becomes impracticable to post the matter within one month from the date of taking cognizance and to comply all the necessary formalities before fixing the trial schedule. So it has become totally impracticable to record the statement of the victim within one month from the date of taking cognizance and to dispose the matter within one year as contemplated under sec.35(2) of the Act. However the matter is disposed of expeditiously.
I Addl. Sessions Court, E.G. District, Rajamahendravaram.
SPECIAL SESSIONS JUDGE FOR TRIAL OF
THE CASES UNDER THE POCSO ACT-CUM-
I ADDITIONAL SESSIONS JUDGE, E.G:
RAJAMAHENDRAVARAM.
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