1 SPL. SC.NO. 270 OF 2021
IN THE COURT OF THE I ADDL. DISTRICT AND SESSIONS JUDGE-CUM-
METROPOLITAN SESSIONS JUDGE-CUM- SPECIAL JUDGE FOR TRIAL OF POCSO CASES, CYBERABAD AT MEDCHAL-MALKAJGIRI DISTRICT AT MALKAJGIRI.
PRESENT: Sri. B.SURESH, Prl. District And Sessions Judge FAC I Addl. District and Sessions Judge-Cum- Metropolitan Sessions Judge -Cum- Special Judge for Trial of Pocso Cases, Cyberabad Medchal-Malkajgiri District At Malkajgiri.
Wednesday, this the 14th day of September, 2022.
SPL. SC No. 270 of 2021
Name of the complainant: The State through PS Malkajgiri Name of the accused: Thankachan Lalu @ Lalu Sebastian, S/o. Thankachan, 44 years, Caste: Christian (BC), Occ: ASI (Driver) at RPSF, R/o. Flat No. 202, Shine Arcade, East Anandbagh, Malkajgiri, Medchal-MalkajgiriDistrict,N/o. Lalubhavanamu,HimugalamuPost, Manvelikari, Alappuzha District, Kerala State. Crime Number: 781 of 2020 Offence Under Section: 354-A, 376(2) (O), 376(3) IPC, Sec 5(I) r/w 6,9 (I) r/w 10 of POCSO Act, 2012 and Sec 3(2) (V) of SC/ST (POA) Act, 2015. Prosecution conducted by: Additional Public Prosecutor. Defence conducted by: M/s. S.Shoban Reddy, Counsel for the Petitioner/accused. Plea of the accused: Not guilty
Sentence of OrderIn the result, the accused is found guilty for the offences under sections 354-A, 376(2)(n) of IPC and under section 5(l) r/w Section 6 of Protection of Children from Sexual Offences Act and under section 3(2)(v) of the SC and ST ( Prevention of Atrocities) Act, 1989 and thereby he is convicted under section 235(2) of Cr.P.C
This case is coming before me for hearing on 23-08-2022 in the presence of Addl. Public Prosecutor for the State and of M/s. S.Shoban Reddy, Counsel for the Petitioner/accused and having stood over the matter for consideration till this day, this court delivered the following:
J U D G M E N T
1. The Assistant Commissioner of Police, Malkajgiri Division filed charge sheet against the accused person in Crime No. 781 of 2020 for the offence 2 SPL. SC.NO. 270 OF 2021 punishable u/sec. 354-A, 376(2) (O), 376(3) IPC, Sec 5(I) r/w 6,9 (I) r/w 10 of POCSO
Act, 2012 and Sec 3(2) (V) of SC/ST (POA) Act, 2015.
2. The brief averments of the charge sheet as per the Assistant Commissioner of Police, Malkajgiri Division are that:
(a) On 07-12-2020, the defacto complainant/mother of the victim girl i.e., PW1 turned up to the Malkajgiri Police Station and lodged a report dated 07-12-2020 stating that since 14-12-2016 they are residing in their own flat at Shine Arcade ,
East Anandbagh, Malkajgiri. The accused is residing in the adjacent flat along with his family members since January, 2016. Pw1 along with her husband go to their respective offices on their jobs and their elder daughter who is studying 10th class and younger daughter studying in their house after returned from their schools.
Since date of lock down their two daughters are staying in the house and they are not going to school. Since two weeks the elder daughter is forcing to vacate their flat and also staying alone without taking food even after several requests , she did not inform anything but on 06-12-2020 her elder daughter revealed to her that their adjacent neighbour ie.., accused herein is troubling her a lot. Earlier when they went to their offices, he used to call her to their house and used to touch her private parts where ever he want. In the year 2018, when she was in her 9th class, he forcibly made her to drink, the drink which he was consuming and used her physically and further threatened to kill her if she informs to any one.
Now and then he used to take her forcibly into his house and used to show her sex videos in his phone. He used to abuse her in filthy language and whenever he used to get chance he used to take her into his house and forcibly used to have sex with her for about 5 times. He also used to gag her mouth with cloths so that her screams should not be heard by the outsiders. He used to bolt the house and harass her and used her physically . On knowing the said incident she immediately lodged the report.
3 SPL. SC.NO. 270 OF 2021
(b)The said report is registered as a case in Crime No. 781 of 2020 for the offences under sections 354-A, 376(2) (O), 376(3) IPC, Sec 5(I) r/w 6,9 (I) r/w 10 of
POCSO Act, 2012 and Sec 3(2) (V) of SC/ST (POA) Act, 2015 and investigated into and in this case PW9 was appointed as an investigating officer and he took up the investigation in this case. Then he proceeded to PS Malkajgiri and secured the presence of PW1 examined her and recorded her statement with the help of the women staff.
(c)On 08-12-2020 a lady officer i.e., PW7 visited the house of the victim girl for recording the statement of the victim girl. Thereafter PW9 secured the presence of LW3 examined him and recorded the statement. Thereafter the victim girl was referred to PW5 for medical examination. She examined the victim girl and issued her report opining that the sexual assault cannot be ruled out and she also examined the victim girl for age determination test and accordingly, she opined that victim girl is 15 to 16 years of age. Thereafter, PW9 secured the presence of
LW4, PW3 and observed the scene of offence and prepared the scene of offence pancahnama along with the rough sketch.
(d)During the course of investigation, on 10-12-2020 at 15 hours on information that the accused was present in his flat, the police Malkajgiri reached his flat and apprehended the accused and produced him before PW9 in his office.
PW9 interrogated him in the presence of mediators i.e., PW4 and LW7 wherein the accused confessed to have committed this offence. Basing on the confession of the accused his mobile phone ASUS make of SIM bearing No. 8019472926 through which he has shown the vulgar videos to the victims was seized from his possession in the presence of mediators under the cover of confession cum seizure report. Thereafter he effected the arrest of the accused and send him to the court for remand , thereafter the accused was referred to PW5 for potency test where in he examined the accused and issued his report opining that there is 4 SPL. SC.NO. 270 OF 2021 nothing to suggest that he is incapable of performing sexual intercourse. LW9 is the Assistant Director of TSFSL Red Hills, who examined the material objects and issued his report. PW6 got issued the caste certificate of the victim girl stating that the victim girl is belong to SC-Adi Andhra Caste and the accused belong to
OC-Christain community. LW11 was the Prl. Junior Civil Judge Cum -XVII Addl.
Metropolitan Magistrate, Cyberabad at Malkajgiri recorded the statement of the victim girl.
So through the investigation it establishes the fact that the accused herein has committed an offence punishable under sections 354-A, 376(2) (O), 376(3)
IPC, Sec 5(I) r/w 6,9 (I) r/w 10 of POCSO Act, 2012 and Sec 3(2) (V) of SC/ST (POA)
Act, 2015.
(e) Hence the charge.
3. The case was taken on file for the offences punishable under sections 376(2) (O), 376(3) IPC, Sec 5(I) r/w 6,9 (I) r/w 10 of POCSO Act, 2012 and Sec 3(2) (V) of SC/ST (POA) Act, 2015 against the Accused by the Hon'ble Metropolitan
Sessions Judge, Cyberabad, at L.B. Nagar .
4.In view of the establishment of new court as Spl. Sessions court for Trial and Disposal of POCSO Act Cases and in pursuance of the orders of Hon’ble Prl.
District and Sessions Judge, R.R.District, vide Proc. Dis.No. 4942/2021, dated 06– 09-2021 the case records are received from the Metropolitan Sessions Judge court, Cyberabad , R.R.District to the Court of Fast Track Special Sessions Judge, for Trial and Disposal of Cases under POCSO Act , Ranga Reddy District at
L.B.Nagar.
5. The Fast Track Special Sessions Judge for Trial and Disposal of cases under
POCSO Act, Ranga Reddy District , at L.B. Nagar having considered the record, framed charges under sections 354-A, 376(2)(n) of IPC and under section 5(l) r/w
Section 6 of the Protection of Children from Sexual Offences Act and under 5 SPL. SC.NO. 270 OF 2021 section 3(2)(v) of the SC and ST ( Prevention of Atrocities) Act, 1989 against
Accused, read over and explained to him in Telugu for which he denied the said charges and pleaded not guilty and claimed to be tried.
6. During the course of trial to prove its case the prosecution got examined
PW1 to PW9 and got marked Exs. P1 to P17 and MO.1.
7.After closure of the prosecution evidence, the accused is examined under section 313 Cr.P.C with regard to the incriminating evidence that is brought on record against him for which he denied the said evidence and reported for defence evidence.
8.On behalf of the defence, Dw1 and DW2 were examined .
9.Heard the arguments on both sides and perused the record.
10. Now the point for consideration in this matter is :
“Whether the accused herein beng the neighbour of the victim girl as both the parents of the victim girl are all working class as during the COVID period as the victim and her sister were staying in the house itself without going to the school due to lock down taking advantage of that fact , the accused herein forcibly took the victim girl to his house made her to consume alcohol and then committed rape and threatened her not to inform the said act to any one or else would kill her. Taking advantage of the fact that the victim was silent , he repeated the said act several times with the victim girl and at times he also used to show her blue films in his mobile phone and used to abuse her in filthy language and also used to beat her as such whether the prosecution herein has brought home the guilt of the accused for the ofence under sections 354-A, 376(2)(n) of IPC and under section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act and under section 3(2)(v) of the SC and ST ( Prevention of Atrocities) Act, 1989”.
11. POINT :
(a)The victim herein is examined as PW2, on the date of her examination in the court i.e., on 10-11-2021, she was aged about 16 years and studying Inter 2nd year.
At the time of this incident she was in 8th class. She deposed that her date of birth 6 SPL. SC.NO. 270 OF 2021 is 19-01-2005 and it is observed that this incident did not took place in a single day but it took place for a period of two years it was a continuing offence from the year 2018 till the end of 2020 i.e., the accused was alleged to have committing sexual assault upon the victim girl for several times during those period. During 2018 , the age of the victim girl is about 14 years.
(b)The victim girl family i.e., herself her younger sister and parents were living in an apartment and by the side of the said apartmnet, the accused along with his wife and two daughters i.e., the house of the accused is situated just beside the house of the victim girl. The contents of the victim girl is that the accused used to come to his house and place prone videos , when the victim was in the house and asked her to observe the videos when she went to return those videos stating that she is not interested in such kind of things. The accused herein stated to her that as she is fresh she has to enjoy and the accused caught hold of her and touched her body on various parts of her body including her private parts and as she raise hues and cry and as it was time for her wife to return home. She left her and at times he forcibly took her the victim girl to his house by putting her on his shoulders and committed rape upon her and in the absence of the family members of the accused in his house used to repeat the said act and he also threatened her not to reveal the said incident to her parents or else he would kill her used to pour alcohol forcibly in her mouth and he also pour honey over her body and he also pour some oil so as the victim will not have pain and committed rape upon in his house when he used raise hues and cries used to put clothes in her mouth and he also tied her hands before committing rape on her and he committed such act upon the victim girl for about 5 to 6 times. When she was appearing dull to her parents they questioned her the reason for her being dull and also that she was not taking food properly and not having sufficient sleep and due to fear she opened and informed the matter to her parents on 06-12-2020 7 SPL. SC.NO. 270 OF 2021 and on 07-12-2020 the matter was informed to the parents . She further deposed that he showed sex videos of one of the aunts staying in the said apartments to her. When she refused to accompany him he also beat her with belt . She further stated that the accued used to tell her that she has to bring her friends so that he can perform sex with those friends also and her statement was already recorded by the Magistrate and Exs.P.2 and P.3 are the signatures on the statement which was recorded by the judge. So on perusal of evidence of PW2, the victim girl herein and the accused being neighbour of the victim girl in the absence of the parents of the victim girl used to asked the victim girl to watch the prone videos and when she went to his house to return the same, he committed sexual assualt upon the victim girl and also committed rape upon her and repeated the said act on various dates and committed such act for 5 to 6 times upon the victim girl.
(c)She in her evidence deposed as follows:
“ My neighbour told me that I was fresh and I have to enjoy by seeing the videos by telling that I was not interested in it I was about to return . While returning he followed me and he pushed my head to the wall by his hand He also touched me at my private parts since I was weeping and it was time for return of his wife he left me”
(d)She further deposed that again in the absence of my family members at my house, he again did the same act on me he told me that if the matter is revealed to my parents he will kill me. He poured alcohol forcibly in my mouth. He also poured honey over my body. He also poured some oil not to have pain. He committed rape upon me at his house. Since I used to make hue and cry he used to put up cloth in my mouth and he also tied my hands before committing rape upon me. He committed such act on me for about 5 to 6 times”.
8 SPL. SC.NO. 270 OF 2021
(e)She further deposed as follows:
“ While I was in the hall , he closed my mouth and brought me to his house putting me on his shoulder. Again, he committed rape upon me”. She further deposed as follows: The neighbour told me that I have to bring my friends so that he can perform sex with those my friends also. So this evidence of PW2 the victim herein establishes the fact that the accused being the just neighbour of the victim girl as both the parents of the victim are of working class used to go to their jobs.
He took advantage of the said fact and when the victim girl returned back to their school or in the absnece of the parents of the victim girl whenever she was present in the house, she used to take the victim girl to his house/flat and used to commit rape upon her. Even on perusal of the statement of the victim girl, same fact are revealed”.
12.PW1 was none other than the mother of the victim girl and also the defacto complainant herein, she also deposed that on 06-12-2020 when her elder daughter was in dull mood they asked her as to what is the reason to it and she also not taking proper food and they asked her as to what happened to her for about one week so on 06-12-2020 she was informed for shifting the residence from that place. Then she revealed that the neighbour uncle was not good person and she told that right from the year 2018 onwards he was harassing her and also stated that the accused used to show blue films, CD and also asked to her daughter to see it . The accused used to bring the CDs and keep in their house when her daughter is in the kitchen or else where in the house when her daughter went to return the same he dragged her daughter inside the room bolted the room and gave a drink though she was not interested after taking it he misbehaved with her by touching her body at different places and when the accused was alone in the house when the child was alone in the house he used to drag her daughter into his house, the accused used to take her daughter in the 9 SPL. SC.NO. 270 OF 2021 bathroom and used to have shower on her while she was on clothes and inveiw of giving the drinks to her daughter she used to incapable of knowing the consequences and while dragging her daughter when she raised hues and cries , the accused used to put clothes in her mouth and this was done to her daughter for 5 times . The accused used to pour honey and oil on her body and misbehaved like a psycho and her daughter also told her the accused also committed rape upon her for 5 times and he also told to her daughter that she should behave in a normal manner in her house with her parents otherwise she create any doubt in her behaviour he would kill her. She further deposed that the victim informed her that if such information is revealed to her parents there is every possibility of causing harm to her sister and also to them by the accused and her daughter also informed that she has to bring her friends to the accused and after coming to know about the said incident then they went to police station and lodged a complaint i.e., Ex.P.1 so this evidence of PW2 is corroborted to the facts deposed by the victim girl with regard to the assault of the accused upon the victim girl.
Though Pws 1 and 2 were cross examined elobarately pages to gether nothing is elicited in the cross examination to disbelieve the contention of the victim girl with regard to the sexual assault committed by the accused upon the victim girl.
The victim girl has stood the test of cross examination of pages together but nothing is elicited out of the cross examination to discredit the evidence of PW2 i.e., the victim girl herein. The evidence of the victim girl herein is trustworthy, believable and inspire confidence wtih regard to the occurrance of this incident.
(a)The accused herein in support of his contention at the first instant stated that he incurred the expenditure for erection of the grill at their apartment when he asked the parents of the victim to return back the money pertaining to their share they got lodged the police complaint against the accused. In the cross examination of PW2, she stated that initially the expenditure of the erection of 10 SPL. SC.NO. 270 OF 2021 the grill was paid by the accused as they were not in a position to draw the money from him but it was not stated that there was no money with them to pay for it and further PW2 deposed that her husband only know about the expenditure with regard to grill. Whereas PW2 deposed that she is not aware about the accused incurring the sum of Rs.50,000/- for erecting the grill and the victim is nothing to do with the erecting of the grill and no parents would ruin their daughter’s life alleging that the accused committed rape upon her for the sake of expenditure with regard to the grill . So the contention raised by the accused herein with regard to the lodging of the false complaint by the parents of the victim cannot be believed in.
(b)The accused herein further in support of his contention, he raised another plea that the parents of the victim asked him for a sum of Rs.5,00,000/- when he refused to pay the said amount, they lodged this false complaint against the accused. So this contention of the accused itself, also not inspiring confidence that when they asked the amount with the accused over due to the fact that he refused to lend such amount to the parents of the victim girl they would fall to such an extent that they would take their daughter’s future life by branding her to be the victim of rape just for the sake of useful of money when both the parents of the victim are working class.
(c)The accused herein further stated that when the friends of the victim girl made noise when they came to their house and that the same was complained by the accused therefore they foisted a false complaint against him. This contention of the accused also unreliable and unbelievable just for the sake of he making complaint against the victim the parents of the victim would go to such an extent and alleged that the accused committed rape upon her daughter repeated the said act for 5 or 6 times. So this contention of the accused is also not at all reliable or believable.
11 SPL. SC.NO. 270 OF 2021
13.PW5 was an medical officer herein who examined the victim girl and issued her report. She deposed as follows:
(a)On examination of the victim girl , there are no external injuries on the body of the PW2 on examination of the private and genital part of the victim girl, the hymen was torn and vagina admitted two fingers field, vagina swabs and smears were collected and send for FSL. She also issued the age certificate of PW2 i.e., the victim girl. She determined that she was aged about 15 to 16 years .
Ex.P.2 is preliminary examination report . Ex.P.10 is the age certificate of PW2 and
Ex.P.11 is the final opinion of PW2 and she gave a finding that the findings of PW2 are consistent with sexual intercourse without force . In her cross examination, she stated that if 15 to 16 years old girl hymen can be torn by sexual intercourse or by use of tampons or by fall with legs apart it can be done by heavy cycling by the girl of that age. She further stated that in such a case vagina will not allow two findgers so this evidence of PW5 the medical officer herein also supports the contention of the victim girl with regard to the occurrance of sexual assault upon her.
(b)Pw5 also examined the accused and got issued potency report of the accused which is Ex.P.14 and she is of the opinion that the said person can perform sexual act. So evidence of PW5 rules out the accused is not impotent.
14.(i)The Hon’ble Supreme Court of India in 1996 AIR 1393 between The state of Punjab Vs. Gurmit Singh and others held as follows:
“ The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such 12 SPL. SC.NO. 270 OF 2021 which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assualt stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit , the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimoney of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances It must not be over-looked that a woman or a girl subjected to sexual assualt is not an accomplice to the crime but is a victim of another persons’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice”.
(ii)CRL.A.No. 877 of 2002 Hon’ble High Court of Kerala between Dharmarajan
S/o. Sreedharan Pillai Vs. State of Kerala (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred, (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours, (3) She would have to brave the 13 SPL. SC.NO. 270 OF 2021 whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives , and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her.
(8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the unbringing in a tradition bound society where by and large sex is taboo (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account o fear of social stigma on the family name and family
honour. (11) The fear of the victim herself being considered to be promiscuous or in
some way responsible for the incident regardless of her innocent (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross- examination by counsel for the culprit, and the risk of being disbelieved , act as a deterrent. “
In the said citation it is also held as follows:
“ Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good Crl. A.No.
especial emphasis n the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro:the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lost credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals 14 SPL. SC.NO. 270 OF 2021 become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ‘persons’ and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless ”.
15.PW3 is the scene of offence panchanama . He deposed that he is resident of Safilguda, Anandbagh. He know one G.Sai Kumar. He is none other than the scene of offence panch witness . He further deposed that on 08-12-2020 at about 04:00 p.m police called him at East Anandbagh Shine Archade, 2nd floor (202). At that time ACP Sham Prasad was there. He informed him that for the last 2 years, a minor girl was subjected to harassment by Lallu Sebastian. He showed videos to the girl and threatened her and he committed sexual intercourse with her and
ACP prepared diagram and Ex.P.4 is the signature on the rough sketch and Ex.P.5 is the scene of offence panchanama. Though he was cross examined nothing is elicited in his cross examination to disbelieve his contention so the evidence of
PW3 also discloses that he came to know that at the scene of offence sexual assault have been committed by a person by name Lallu Sebastian who is none other than the accused.
16.PW4 is the mediator for the confession of the accused herein . His evidence is that on 10-12-2020 at 4 :00 p.m, the police called him to the Uppal ACP Office.
They showed the accused and on enquiry he confessed that he used the girl for about one year showed sexual videos in the cell phone to the girl then police seized the cell phone from him which is MO1 and Ex.P.6 is the confession panchanama seizure of cell phone and Ex.P.6 contained the signtures of Ex.P.6 which contains Ex.P.7 and Ex.P.8 is the signature on the panch chit i.e., MO1.
Though he was cross examined nothing is elicited in cross examination.
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17.PW6 who is the Tahsildar , Bachupally . His evidence is that on the request of Assistant Commissioner of Police , Police Malkajgiri Rachakonda, he has given a caste certificate report of PW2 and the accused. PW2 is belong to SC community and the accused belong to OC. Ex.P.13 is his proceedings showing the caste of
PW2 and the accused. He in his cross examination deposed that as per the school record of PW2 and field enquiry about PW2 it disclosed that she belong to SC
Community so the evidence of PW6 discloses that victim belongs to SC community and that the accused belongs to OC community.
18.PW7 was the police official, who recorded the statement of the victim girl
She deposed that as per the instructions of the Inspectof of Police, Malkajgiri and on his requisition on 08-12-2020, she went to Malkajgiri Police Station at the police station she recorded the statement of PW2 and handed over to Inspector of police. She in her cross examination stated at the time of recording the statement of the victim girl her mother was present and she did not verify any documents prior to the recording of the statement of the victim girl. She verified the copy of the FIR prior to the recording of statement of PW2. She was in the civil dress at that time as such PW2 did not recognize her at the first instance so this evidence of PW7 with regard to recording of the statement of the victim girl.
In the evidence of PW2, she deposed that the police officer recorded the statement of the victim girl at her house but PW7 stated that she recorded the statement in the police station. Even PW9 the investigating officer herein deposed that PW7 visited the scene of offence i.e., the house of the victim girl and there she recorded the statement of the victim girl. It is observed that PW7 due to the passage of time might have been forgotten that where she recorded the statement and might have deposed that she recorded the statement at the police station. Though there is a contradiction with regard to the place of recording of a statement but the evidence of PW7 discloses that the mother of 16 SPL. SC.NO. 270 OF 2021 the victim girl was present at the time of recording her statement and were it is recorded is not such a material fact but the fact of recording of the statement is being established.
19.Pws 8 and 9 are the investigating officers in this case, where as the evidence of PW8 is on 07-12-2020 at about 20:45 hours, he received a report i.e.,
Ex.P.1 from PW1 and registered the same as a case in Crime No. 781 of 2020 for the offence under sections 354-A, 376(2) (O), 376(3) IPC, Sec 5(I) r/w 6,9 (I) r/w 10 of POCSO Act, 2012 and Sec 3(2) (V) of SC/ST (POA) Act, 2015 and issued the FIR which is Ex.P.15 . Then he handed over the CD file to PW9. Whereas the evidence of PW9 is that he took up the investigation in this case from PW8 as per the directions of the Commissioner of Police, Rachakonda . This letter is Ex.P.16 he secured the presence of PW1 examined her and recorded her statement then visited the scene of offence which is situated at Flat No. 202, Shine Arcade, East
Anand Bagh, Malkajgiri and secured the presence of father of the victim girl i.e.,
LW3 examined him and recorded his statement. Then on his instructions the SI of
Police, PS Saroornagar i.e., PW7 came to the scene of offence and recorded the statement of the victim girl in the presence of her parents and later handed over the statement of the said victim to him. On 08-12-2020 he referred the victim girl to the medical examination. On the instructions of PW9, the SI of police,
Malkajgiri and his staff apprehended the accused on 10-12-2020 at his residence and produced before him. He secured the presence of PW4 and LW7 and in their presence he interrogated him wherein he confessed to have committed this offence and have seized ASUS mobile phone from the possession of the accused under the cover of seizure panchanama. Thereafter he forwarded the smears of the victim girl and which was obtained from the medical officer and referred it to the FSL , Hyderabad for chemical examination and report. He gave requisition to
PW6 to issue the caste certificate of the victim and the accused. He also made a 17 SPL. SC.NO. 270 OF 2021 requisition before XVII Addl. Metropolitan Magistrate, Cyberabad to record 164
Cr.P.C statement of the victim girl. On 10-12-2020 produced the accused in
District Hospital of Malkajgiri for potency test and after completion of the arrest formalities he was produced before the court after receipt of caste certificate,
FSL report , medical reports which are Ex.P.9 to 12 and 14 and after completion of the investigation he filed the charge sheet. PW9 in his cross examination deposed that as per his knowledge there are no civil disputes between the family of the accused and the family of the informant . None informed him that there was a civil dispute between the family of the accused and informant with regard to the erection of a grill in between their flats where as the accused herein to establish his innocence. He got examined his wife as DW1 and she deposed that from the year 2018 there was dispute with her the neighbours i.e., PW1 regarding erection of grill in the common area. The flat of PW1 is situated besides their flat at the second floor. After erection of the above grill, they paid the entire expenditure of
Rs.1,00,000/- in the erection of the said grill when she demanded PW1 to pay half of the above expenses for erection of the grill than disputes started between her and PW1 and later the above disputes when they placed the AC compressor in the common area and also after they placed the exhaust fan from the kitchen towards the common area. So if at all there are disputes with regard to these facts it may would been revealed in the investigation of the investigating officer they could have been informed him about the dispute between them at the time of investigation. PW9 further deposed that he did not seized any blue film , CD’s or cassettes from the possession of the accused or the victim girl. He further added that the accused stated to him he has removed the blue film, CD and cassettes so there was no chance for him to seize the same from the accused. He even did not forward the MO1 cell phone to any expert to retrieve the contents therein. So the prosecution failed to refer the cell phone to FSL for retrieve the contents of which 18 SPL. SC.NO. 270 OF 2021 was deleting in the cell phone and he further deposed that on observation of MO1 i.e., cell phone , he did not find of any stored material therein. So that might have prompted him not to refer the cell phone to experts opinion . He further deposed that the accused knowing languages of Malayalam, Hindi, Telugu . So discloses that the accused know Telugu language. PW9 further deposed as per his investigation from the year 2016, the accused was working in Hyderabad and that in the year 2017 , he was involved in murder case. So this evidence of Pws 8 and 9 with regard to the investigation done by him.
20.Further the accused herein to establish his innocence and having not committed this offence. He got examined his wife as DW1. She deposed that in the year 2018, there was a dispute with the neighbour i.e., PW1 with regard to erecting of grill in the common area. After erection of the grill, they paid the entire expenses of Rs. 1,00,000/- for erection of the said grill . When she demanded PW1 to pay half of the above expenses for erection of the grill dispute started between her and PW1 and later a dispute also started when we placed AC compressor in the common area and also after they placed the exhaust fan from the kitchen towards common area.
She in her cross examination deposed as follows : I did not consult or speak with the family members of PW1 with regard to erection of iron grill in the common area. My husband and PW1 got erected the iron grill and my husband spent a sum of Rs.1,00,000/- for the same and PW1 has to share a sum of
Rs.50,000/- for the said expenses. In this regard, the bills for purchase of the grills or the later work or any documents pertaining to the erection of grills is not been filed by the accused herein to show that he incurred an expenditure of
Rs.1,00,000/- and there was any agreement between her or her husband with PW1 or her husband for erection of grill of sharing basis and that the accused should spend the said amount at first and they would share the same thereafter and 19 SPL. SC.NO. 270 OF 2021 likewise also with regard to the disputes of AC and exhaust fan it was observed that no mother in this world would instigate her daughter with a false charge of raping her putting her future into jeopardy in a traditional bond society of India where in extremely reluctant even to admit that any incident which is likely to reflect on chastity at the cost of being ostracized by the society or being look down by the society including by his own family members relatives friends and neighbours is just for the sake of amount of the grill even if the believe that if a dispute is with regard to the erection of the grill.
21.DW1 further deposed in the year 2018-2019, she observed that the number of male persons used to visit the flat of PW1 to meet the daughter i.e. victim girl after the school hours in the absence of PW1 and her husband . On one occasion in the year 2018-2019, she informed PW1 that a number of male persons are visiting her house to meet her daughter during her absence. There is no evidence to say how many persons visited her house when they visited the house of the
PW1 the period i.e., from what time to time they stayed in the house and when those people were in the house whether the doors of the house were closed or not . Whether victim alone was present in the house or she was present alone with her sister nothing is deposed by PW1. Even the victim admitted that her friends used to come to house for the sake of books so mere visiting of a classmate of the victim to the house just to ask the book cannot be stated to be that the victim girl is having any questionable character or behaving with them in an indecent manner. She further deposed that in the year 2019, she along with the watchman by name Srilatha and the builder of the flat by name Munavar came to flat of DW1 and locked the grill and at that time one boy was present in the flat of PW1 alone with PW2. Even DW2 who is the daughter of DW1, she also deposed that initially she was the friend of PW2 later she stopped talking to her. Later she came to know character of PW2, about 3 or 4 years back when she returned from the 20 SPL. SC.NO. 270 OF 2021 house, she made to stand outside the grill and PW2 caught red handed by the watchman and the owner of the flat along with her boyfriend at about 06:30 pm the father of PW2 came to the flat and the lock of the grill was opened and when entered into the house by the mother of DW1 informed DW2 about the above fact and on number of occasions number of boys were visiting PW2 flat for combined studies and if such an incident happen and there was a quarrel with regard to such incident at the flat when DW1 happened to see a boy with PW2 in the house it was observed the boy in the house door’s might be open and no one would act in indecent manner by keep opening the doors if at all such an incident has happened they could have remembered the date and also name of the boy who was present in the house but none of the details was established by Dw1 or
DW2 who was present with the victim girl on that day. So such an incident happen there were quarrel between them there were no likehood of cordial relationship between them. So when the incident happen from 2019 and then 2019-2020 it is stated that it is corona period and PW1 asked for a sum of Rs.5,00,000/- with Dw1 or her husband if there was quarrel in 2018-2019 questioning the character of the daughter of PW1 and she again going with them and asking for the amount is also appear to be somewhat unnatural and unbelievable and no person as already stated above would put at stake the entire life of her daughter just for the sake of money i.e., the mother do not involve her daughter in various offence of rape of her daughter against the accused herein. So on perusal of the evidence of DWs 1 and 2 it does not inspire any confidence that due to the disputes between both the families PW1 instigated her daughter and alleged to have made a false allegation against the accused herein. But by keeping all the things aside the evidence of PW2 is cogent and reliable and inspires confidence and also corroborated with the medical evidence establishes the fact of accused committing rape upon her.
21 SPL. SC.NO. 270 OF 2021
22. The learned counsel for the accused who was to demolish the evidence of the prosecution who was relied upon 2022 LAW SUIT MADRAS 904 High Court of
Madras Srini @ Srinivasan Vs. State Rep by Inspector of Police, Marandhahalli
Police Station wherein it is held that there is no signature of the victim girl on the complaint and it creates a doubt with regard to genuineness of the complaint in this case . The victim is not the complainant nor the accused established that there is any manipulation in the complaint so the facts of this case is quite different from the facts of the present case, as such the said citation is not applicable to the facts of the present case. He further relied upon (1) 2022 LAW SUIT (Utt) 84 and (2) 2022 LAW
SUIT (Cal) 99 where in it held that “ when the determination of age is on the basis of evidence such as school records, it is necessary for the same would have to be considered as per Section 35 of the Indian Evidence Act and Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion in this case the victim herself deposed her date of birth and also supported by medical evidence but it was the defective investigation of the investigating officer if not collecting the school records or date of birth of the victim with regard to defective investigation in
CRL.A.No. 877 of 2002 High Court of Kerala between Dharmarajan S/o.
Sreedharan Pillai Vs. State of Kerala “ There may be highly defective investigation in a case. However , it is to be examined as to whether there is any lapse by the I.O and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal”.
So the defect in the investigation cannot be the sole ground for acquittal of the accused when there is evidence pointing guilty of the accused . Basing on the defective investigation only accused cannot claim acquittal.
22 SPL. SC.NO. 270 OF 2021
He further relied upon 2018 LAW SUIT (DEL) 6051 HIGH COURT OF DELHI (D.B) STATE (GOVT OF NCT OF DELHI) vs. KULDEEP @ KALLU & ANR where in it is held that on the perusal of the testimonies of prosecutrix there were many improvements and contradictions in her statement recorded at various stages as such her evidence cannot be relied upon but in this case no contradictions is being marked or elicited in the evidence of victim or any other victims nor any omissions being elicited so the principle laid down in the said citation is quite different from the facts of the present case. As such the same is not applicable to the facts of this case.
The accused further relied on 2018(2) ALD (Crl.) 687 (SC) Sham Singh Vs.
State of Haryana where in it is held that the wife , children, sister and mother of the accused persons were present in the house when the alleged incident took place, such a scenario is highly unlikely and it is natural for a young girl are to sustain certain injuries on the wrist when her hands are tied. In this case he categorically deposed that in the absence of the inmates of the house of the accused used to call the victim girl or take her into his house forcibly commit such offence whenever the inmates of the house are absent from the house and it is also elicited that they are residents of Kerala and his family used to visit Kerala and at time he used to come alone to the house and whenever at sometimes when he went on duty he came and stay alone in the house so the facts of the case are quite different from the facts of the present case and is not applicable to the facts of the present case.
He further relied upon 2018 Law Suit (Bom) 1121 Mohan Ambadas Meshram
Vs. State of Maharashtra through Police station, Chandrapur , 2018 Law Suit (Del) 1120 Kamaluddin Khan Vs. State of Delhi, 2014 Law Suit (SC) 949 Manoharlal Vs,
State of MP , 2006 CRL. L.J 2358 Tiharu & Anr. Vs. State of Chhattisgarh , 2006 CRL.
L.J 2360 Joyakesh Podeder & Ors Vs. State of Bihar and Anr 2005 CRI.L.J 3238
Mohabbat Vs. State of U.P , 2005 CRI L.J. 3240 Satish Kumar Vs. State of H.P, 2022
Law Suit (Del) 16 Ravinder Vs. State , 2003 Law suit (Ori) 152 Sania Jani Vs. State , 23 SPL. SC.NO. 270 OF 2021 2022 LawSuit (J&K) 26 Hardev Singh Vs. UT of J&K and another , 2019 Law Suit (Del) 747 State (GNCT of Delhi) Vs. Kuldeep @ SONU , 2019 Law Suit (TR) 93
Kishore Debbarma Son of Sakhi Chandra Debbarma Vs. State of Tripura. The facts of the said case are quite different from the facts of the present case and is not applicable.
So on careful perusal of evidence of PWs1 to 9 , Dws 1 and 2 and Exs.P1 to
P17 and MO1. The evidence of PW2 read with PW1 and the medical evidence establishes the fact of the accused committing rape upon the victim girl and repeating the said act for several times I..e, about 5 to 6 times as observed above.
The evidence of the victim is trustworthy inspires confidence and found to be reliable and thus establishes the charge alleged against the accused herein.
Point No.2:
23.In the result, the accused is found guilty for the offence under sections 354-A, 376(2)(n) of IPC and under section 5(l) r/w Section 6 of Protection of
Children from Sexual Offences Act and under section 3(2)(v) of the SC and ST ( Prevention of Atrocities) Act, 1989 and thereby he is convicted under section 235(2) of Cr.P.C. This point is answered accordingly in favour of the prosecution and against the accused.
Dictated to stenographer, corrected and pronounced by me in the open court on this 14th
day of September, 2022.
FAC I Addl. District and Sessions Judge-Cum- Metropolitan Sessions Judge -Cum- Special
Judge for Trial of Pocso Cases, Cyberabad
Medchal-Malkajgiri District At Malkajgiri.
The accused is questioned with regard to the quantum of sentence to be imposed to which the accused stated that he has not committed any offence and he is having family and to take a lenient view.
24 SPL. SC.NO. 270 OF 2021
Taking into view the gravity of the offence committed by the accused herein a lenient view cannot be taken against the accused. As per Section 42 of
Protection of Children from Sexual offences Act, 2012, with regard to the alternate punishment, it is held that if the offender found guilty of offence under the provision of protection of Children from Sexual Offences Act, 2012 and under
Indian Penal Code as provided for the punishment, the accused shall be liable for punishment which is greater in degree. So, accordingly, as the offence committed by the Accused is grave offence i.e., the accused herein though very well aware of the fact that the victim is a minor girl below the age of 16 years again took away the victim girl and repeated the Act of sexual assault. The act of the accused cannot be viewed leniently and deserves severe punishment. As the punishment for the offences under section 376(2)(n) IPC and the punishment under section 5(l) r/w Section 6 of POSCO Act are one and the same. The offence under POSCO
Act is being preferred for the offence under section 376(2)(n) IPC . It is observed that the act of accused is hideous in committing sexual assault upon the victim girl who is a minor girl having tender age of about 14 or 15 years at the time of offence. Hence, the benefits under section 360 Cr.P.C or P.O Act cannot be extended to Accused.
In the result, the accused is found guilty for the offence under sections 354-
A of IPC and under section 5(l) r/w Section 6 of Protection of Children From Sexual
Offences Act and under section 3(2)(v) of the SC and ST ( Prevention of Atrocities)
Act, 1989 and thereby he is convicted under section 235(2) of Cr.P.C. Thereby the accused is sentenced to undergo Rigorous Imprisonment for a period of (2) years for the offence under section 354-A of IPC and he is sentenced to pay fine of
Rs.5000/- in default to pay fine he shall undergo Simple Imprisonment for a period of two months.
25 SPL. SC.NO. 270 OF 2021
The accused is sentenced to undergo Rigorous Imprisonment for life mean imprisonment for the reminder of the natural life of that person for the offence under section 5(l) r/w Sec 6 of POSCO Act and to pay fine of Rs.5000/- in default to pay fine he shall undergo Simple Imprisonment for a period of two months
The accused is also sentenced to undergo Rigorous Imprisonment for life for the offence under section 3(2)(v) of the SC and ST (Prevention of
Atrocities)Act, 1989 and to pay fine of Rs.5000/- in default to pay fine he shall undergo Simple Imprisonment for a period of two months.
All the sentences shall run concurrently.
The remand period if any undergone by the accused shall be set off under section 428 of Cr.P.C . The accused is informed that if he does not have capacity to engage an advocate to prefer an appeal legal aid can be provided to him in case if he intends to prefer an appeal.
As a measure of some help to the victim girl, as she has undergone lot of trauma, pain, agony and hardship , this Court is of the opinion that the victim girl is entitled for compensation of Rs.7,00,000/- ( Rupees seven lakhs only) as per the schedule of the Telangana Victim Compensation Scheme. The victim girl is minor even as on today. Hence, out of the compensation amount awarded to the victim girl, 80% of the amounts shall be kept in fixed deposit in any nationalized bank and the said amount shall be drawn only on their attaining the age of majority but not before three years of the deposit the victim girl is entitled for release of 20% of the compensation amount in their favour. The DLSA authorities are requested to initiate necessary steps to deposit the said 26 SPL. SC.NO. 270 OF 2021 compensation amount into the bank account of the victim girl and make it available for the victim girls to meet their expenses and also to look after their welfare and other appropriate requirements needed by them.
Dictated to the stenographer, transcribed by her, corrected and pronounced by me in the open
court on this the 14th day of September, 2022.
Sd/-
FAC I Addl. District and Sessions Judge-Cum- Metropolitan Sessions Judge -Cum- Special
Judge for Trial of Pocso Cases, Cyberabad
Medchal-Malkajgiri District At Malkajgiri.
APPENDIX OF EVIDENCE
NO. OF WITNESSES EXAMINED
FOR PROSECUTION: FOR DEFENCE:
PW.1 : B.Sushma ( Mother of the victim) DW1: Shiny
PW.2 : Victim Girl Dw2: Delcy
PW.3 : D.Eshwar Yadav ( mediator for scene of offence and rough sketch) PW.4 : D.Balraju ( Mediator for confession cum seizure panchanama)
PW.5 : Dr.Sarah Seemeen ( examined the victim)
PW.6 : N.R.Saritha ( issued caste information of victim and accused)
PW.7 : K.Mallishwari ( recorded the 161 Cr.P.C statement of victim/LW2 )
PW.8 : B.Jagadishwar Rao ( issued FIR)
PW.9 : N.Shyam Prasad (I.O. and filed chargesheet)
NO. OF EXHIBITS MARKED
FOR PROSECUTION: FOR DEFENCE:
Ex.P1: Complaint of PW1containing PW1 signature - Nil -
Ex.P2& P3: Signatures of PW2 on Statements recorded by the Judge
Ex.P4: Signature of PW3 on the rough sketch map.
Ex.P5: Signature of PW3 on the scene of offence panchanama
Ex.P6: Portion of confessional panchanama for seizure of cell phone
Ex.P7: signature of PW4 on Ex.P.6
Ex.P8: Signature of PW4 on the panch chit affixed to MO.1.
Ex.P9: Preliminary examination report of PW2.
Ex.P10: Age certificate of PW2 27 SPL. SC.NO. 270 OF 2021
Ex.P11: Final opinion of PW2
Ex.P.12: FSL report.
Ex.P.13: Proceedings of PW6 dated January, 2021 showing the caste of PW2 and the accused.
Ex.P.14: Medical report issued by PW5.
Ex.P.15: FIR issued by PW8.
Ex.P.16: Letter dated 07-12-2020 of Commissioner of Police, Rachakonda
Ex.P.17: Rough sketch of scene of offence, dated 08-12-2020.
NO. OF MATERIAL OBJECTS MARKED.
MO-I : ASUS Mobile phone
FAC I Addl. District and Sessions Judge-Cum- Metropolitan Sessions Judge -Cum- Special
Judge for Trial of Pocso Cases, Cyberabad
Medchal-Malkajgiri District At Malkajgiri.