APNE160000042022 :-1:-
IN THE COURT OF THE SPECIAL JUDGE FOR SPEEDY TRIAL OF OFFENCES
UNDER PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, NELLORE.
Present:- Smt. CIRIPIREDDY SUMA
Special Judge for Speedy Trial of Offences
under Protection of Children from Sexual Offences Act, Nellore. *****
Tuesday, this the 28 th day of April 2026.
POC SO SESSIONS CASE No. 17 /2022.
(In Crime No.303/2021 of Buchireddypalem Police Station ).
1.Name of the Complainant:State represented by the Sub Divisional Police Officer, Nellore Rural Sub Division.
2.Name of the accused :Thupakula Narayana, S/o.Muni Swamy, aged 50 years, Pulathota, Buchireddypalem village and Mandal.
3.Date, time and place of : Date & Time From:12.08.2021 at 14.00 occurrencehours ST Colony, Polinaidu Cheruvu village, Buchireddypalem.
4.Charges:Under Sections 366, 376 AB IPC, 5 (m) r/w 6 of POCSO Act, 2012 and 3 (1) (w) (i) of ST & ST (POA) Act and 3 (2) (va) of SC & ST (POA) Act.
5.Plea of Accused :Not guilty.
6.Finding of the Judge: Guilty.
7.Sentence or Order:In the result the accused is found guilty for the offences punishable U/Secs.366 and 376AB of IPC and section 5(m) r/w 6 of POCSO Act 2012 and he is convicted under section 235(2) of Cr.P.C for the said offences.
APNE160000042022 :-2:-
(i).The accused is found not guilty for the offences punishable under Sections 3 (1) (w) (i) of SC/ST (POA) Act and 3 (2) (va) of SC & ST (POA) Amened Act, 2015 and he is acquitted under Section 235 (1) Cr.P.C. When questioned the accused regarding quantum of sentence, he pleaded that he is suffering from epilepsy, he is having old aged wife aged 70 years and except himself, there is none to look after the welfare of his wife and pleaded mercy of the court. After hearing the accused this court is of the considered opinion that a lenient view cannot be taken against him as the offence committed by him is against the minor victim girl below 12 years age, which is grave and heinous in nature. Section 42 of The Protection of Children from Sexual Offences Act, 2012 Alternate Punishment speaks as follows:- "When 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, 376AB, 376-8, 376-C. 376-D, 376DA, 376DB or Section 509 of the Indian Penal Code (45 of 1860), 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
APNE160000042022 :-3:- provides for punishment which is greater in degree".
In view of Section 42 of POCSO Act, as the victim girl is a minor below the age of 12 years, punishment prescribed for the offence Under Sec.376AB IPC and Sec.5(m) r/w 6 of Protection of Children from Sexual Offences Act, 2012 are similar punishments, the accused is punished and sentenced to rigorous imprisonment for a period of twenty (20) years and to pay a fine of Rs.5,000/- (Rupees five thousand only)for the offence U/Sec.5(m) of Protection of Children from Sexual Offences Act, 2012 punishable U/Sec.6 of Protection of Children from Sexual Offences Act, 2012, and in default of payment of fine amount, he has to further undergo Simple Imprisonment for a period of 2 (two) months.
(i).The accused is further sentenced to undergo Rigorous imprisonment for a period of 5 years (five) for the offence punishable U/Sec.366 of IPC and to pay fine of Rs.2,000/- (Rupees two thousand only), in default of payment of fine he shall undergo simple imprisonment for a period of one (1) month.
(ii).The fine amount of Rs.5,000/- (Rupees five thousand only) shall be paid to the victim girl/PW-2 as enunciated under Section 6(2) of Protection of Children from Sexual Offences Act, 2012 (Amendment) Act, 2019 towards compensation for her mental agony, pain and sufferance.
(iii).All the substantive sentences
APNE160000042022 :-4:- shall run concurrently and default sentences shall run consecutively.
(iv).The remand period of accused which was undergone by him during investigation and trial i.e., from 20.08.2021 to 16.07.2022 shall be set off as required under section 428 of Cr.P.C.
(v). The unmarked case property if any shall ordered to be destroyed, after the expiry of appeal period.
(vi). The accused is appraised about his right to prefer an appeal against this judgment before the Hon'ble High Court and he is further informed that he will be provided legal-aid counsel, if required. Free copy of Judgment is supplied to him.
(vii). As the accused is convicted for the offences U/Sec.5(m) of Protection of Children from Sexual Offences Act, 2012 punishable U/Sec.6 of Protection of Children from Sexual Offences Act, 2012 for committing aggravated penetrative sexual assault on the victim girl/PW-2 aged 8 years, impact of the offence reflects on her future, this court is of considered opinion that the victim girl/PW-1 has to be compensated for her trauma, considering the facts and circumstances of the case this court deems it fit, awarding compensation of Rs.4,00,000/- (rupees four lakhs only) to the victim girl/PW-2 would meet the ends of justice. As the accused pleaded that he has no properties and admittedly the victim girl/PW-2 is aged 8 years against whom the accused
APNE160000042022 :-5:- committed aggravated penetrative sexual assault is entitled to claim compensation which shall be payable by the State Government out of funds available under Andhra Pradesh Victim Compensation Scheme, compensation of Rs.4,00,000/- (Rupees four only) to the victim girl/PW-2 shall be payable by the District Collector, Nellore from Victims Compensation Scheme funds through District Legal ServicesAuthority,Nellore.The compensation amount awarded to minor victim girl/PW-2 shall be kept in fixed deposit in the name of minor victim girl/PW-2 by showing PW-1/Gandalla Kumari mother of PW-2/victim girl as guardian till PW-2/victim girl attains the age of majority and PW-1/Gandalla Kumari is entitled to withdraw the interest every month for the benefit of minor. The office is directed to furnish a copy of judgment to District Collector, Nellore for paying compensation to the PW-2/victim girl as awarded by this Court.
8.Prosecution conducted by:Sri D.Chandra Sekhar, Special Public Prosecutor, Nellore.
9.Defence conducted by:Sri T.Gopal Reddy, Chief Legal Aid Counsel, Nellore.
APNE160000042022 :-6:-
J U D G M E N T
The State represented by the Sub Divisional Police Officer, Nellore Rural
Sub Division laid charge sheet against the accused in crime No.303/2021 for the offences punishable under Sections 376 IPC, 363 IPC, Section 6 r/w 5 (m) of
POCSO Act, 2012 and Section 3 (1) (w) (i) of SC and ST (POA) Act, 2015 and 3 (2) (va) of SC and ST (POA) Act, 2015.
2. The matrix of the case of the prosecution is that:-
(i).PW-2 (name with held) cited as victim girl in this case, aged about 8 years, studying 3rd standard in the MPUP School of Polinaidu Cheruvu village of
Buchireddypalem Mandal as on the date of offence is the daughter of
PW-1/Gandalla Kumari cited as defacto complainant herein and her husband
PW-3/Gandalla Subrahmanyam residents of ST Colony of Polinaidu Cheruvu village, Buchireddypalem Mandal.
(ii).The accused, who is resident of Pulathota of Buchireddypalem village and Mandal used to sell toys, sugar candies and balloons in the surrounding villages by carrying on bicycle, during the course of his business, accused used to visit Polinaidu Cheruvu ST Colony to sell eatables and toys to
APNE160000042022 :-7:- the children and became familier to the villagers of Polinaidu Cheruvu ST
Colony.
(iii).While so, on 12.08.2021 afternoon around 14.00 hours the accused visited ST Colony of Polinaidu Cheruvu as usual and PW-2/victim girl and
PW-5/Inamala Seenamma went to the bicycle of the accused, at that time accused who developed malicious intention to satisfy his sexual desire through
PW-2/victim girl offered balloons to the PW-2/victim girl and also to
PW-5/Inamala Seenamma and taken them to a house located in secluded place belonging to LW-6/Kumpati Chinnamma, accused kept PW-5/Inamala
Seenamma outside of the house and taken PW-2/victim girl with him inside the house, the accused undressed himself and made the PW-2/victim girl to hold his penis with hands and also inserted his penis inside the mouth of PW-2/victim girl, PW-4/Gundalla Lakshmi, who went to the said house had peeped the acts of the accused on the PW-2/victim girl through the ventilator window and rushed to the house of PW-1/Gandalla Kumari and informed her about the incident then, immediately PW-1/Gandalla Kumari rushed to the said house and witnessed the accused inserted his penis into the mouth of the PW-2/victim girl and on seeing PW-1/Gandalla Kumari, accused fled away from the scene of
APNE160000042022 :-8:- offence leaving the PW-2/victim girl. On enquiry by PW-1/Gandalla Kumari,
PW-2/victim girl narrated her about the incident and thereafter PW-1/Gandalla
Kumari gave report to the police.
(iv).Basing on the report of PW-1/Gandalla Kumari, PW-12/A.Ayyappa, the then probation Sub Inspector of Police, Buchireddypalem Police Station registered a case in crime No.303/2021 for the offences punishable under
Sections 376 IPC, 363 IPC and Section 6 r/w 5 (m) of POCSO Act, 2012 and
Section 3 (1) (w) (I) and Section 3 (2) (va) of SC & ST (POA) Act, 2015 of
Buchireddypalem police station and issued first information report and submitted original first information report to the court as well as its copies to all the officers concerned.
(v).PW-14/U.Nagaraju, the then Deputy Superintendent of Police,
Disha Police Station, SPS Nellore District had taken up investigation in this case on receipt of authorization proceedings issued by the then Superintendent of
Police, SPS Nellore District vide C.No.85/C3-AL/2021 dated 13.08.2021; on 17.08.2021 PW-14/U.Nagaraju, the then Deputy Superintendent of Police, Disha
Police Station, SPS Nellore District visited the scene of offence along with
PW-13/P.Naga Sireesha, Woman Sub Inspector,Disha (Women) Police Station,
APNE160000042022 :-9:-
SPS Nellore District and as per the instructions of PW-14/U.Nagaraju, the then
Deputy Superintendent of Police, Disha Police Station, SPS Nellore District,
PW-13/P.Naga Sireesha, Woman Sub Inspector,Disha (Women) Police Station examined PW-1/Gandalla Kumari, PW-2/Victim girl and PW-5/Inamala
Seenamma and recorded their statements and handed over the said statements to PW-14/U.Nagaraju, the then Deputy Superintendent of Police,
Disha Police Station, SPS Nellore District.
(vi). PW-14/U.Nagaraju, the then Deputy Superintendent of Police,
Disha Police Station, SPS Nellore District examined PW-3/Gandalla
Subrahmanyam, PW-4/Gandalla Lakshmi, LW-6/Kumpati Chinnamma,
LW-7/Gandalla Chenchamma and Lw-8/Bolla Mahitha and recorded their statements and seized clothes of PW-2/victim girl (i.e.,) frock (Gown) under the cover of police proceedings and observed the scene of offence in the presence of mediators PW-7/Lingamgunta Amani and LW-10/Thupili Yuvaraj Achari accompanied by PW-1/Gandalla Kumari and PW-2/victim girl and prepared scene observation report duly attested by the mediators and drew rough sketch of the scene of crime and also taken photographs in his mobile phone.
APNE160000042022 :-10:-
(vii).On 18.08.2021 PW-14/U.Nagaraju, the then Deputy
Superintendent of Police, Disha Police Station, SPS Nellore District arrested the accused and seized the clothes worn by accused under cover of mahazarnama duly attested by mediators Pw-8/Kasa Srinivasulu and LW-12/Ramisetty Mohan
Babu and forwarded the accused to the judicial remand. PW-14/U.Nagaraju, the then Deputy Superintendent of Police, Disha Police Station, SPS Nellore District also forwarded seized material objects to the Regional Forensic Science
Laboratory, Guntur for chemical analysis and received report vide case file
No.RFSL (GNT)/2037/SER/462/2021, dated 31.08.2021.
(viii).On 21.09.2021, LW-21/Y.Harinatha Reddy,the then Sub Divisional
Police Officer, Nellore Rural, SPS Nellore District had received modified authorization proceedings from the Superintendent of Police, SPS Nellore
District vide C.No.85/C3-AL/2021 dated 20.09.2021 and continued with further investigation, LW-21/Y.Harinatha Reddy,the then Sub Divisional Police Officer,
Nellore Rural, SPS Nellore District obtained Regional Forensic Science
Laboratory report from R.F.S.L., Guntur and also medical reports and study and conduct certificate of PW-2/victim girl from PW-11/Smt.Peta Uma Devi, Head
Master, Mandal Praja Parishat Upper Primary School, Polinaidu Cheruvu,
APNE160000042022 :-11:-
Buchireddypalem mandal, SPS Nellore District in proof of date of birth of
PW-2/victim girl. On 05.10.2021 LW-14/Smt.E.Prasuna, the then II Additional
Judicial Magistrate of First Class, Nellore recorded the statements of
PW-1/Gandalla Kumari and PW-2/victim girl under Section 164 Cr.P.C.,
PW-9/Sk.Haeed Ahmad, the then Tahsildar, Buchireddypalem Mandal issued caste certificates of PW-1/Gandalla Kumari and PW-2/victim girl as well as the accused. PW-10/Dr.Sk.Khadar Basha, the then Medical Officer, Up-Graded
Primary Health Centre, Buchireddypalem, SPS Nellore District, examined
PW-2/victim girl had preserved specimens collected from PW-2/victim girl, for chemical analysis and issued preliminary wound certificate and after receipt of
R.F.S.L., report, he issued final opinion. PW-6/Dr.K.A.R.Reddy, the then Assistant
Professor, ACSR Government Medical College, SPS Nellore District conducted potentiality examination on accused and issued potentiality certificate.
(ix).As per the investigation done by LW-21/Y.Harinatha Reddy,the then
Sub Divisional Police Officer, Nellore Rural, SPS Nellore District accused being a non SC/ST community person taken PW-2/victim girl belonging to Scheduled
Tribe community to an abandoned house and committed aggravated penetrative sexual assault on her and prima-facie case was made out against
APNE160000042022 :-12:- the accused for the offences punishable under the Sections 376 IPC, 363 IPC and Section 6 r/w 5 (m) of POCSO Act, 2012 and Section 3 (1) (w)(i) and 3 (2) (va) of SC & ST (POA) Act, 2015 and laid charge sheet against the accused. Hence, the charge sheet.
3.Cognizance was taken for the offences punishable under Sections 376 IPC, 363 IPC and Section 6 r/w 5 (m) of Protection of Children from Sexual
Offence Act, 2012 against accused and after appearance of accused, copies of case documents were furnished to him as contemplated U/Sec.207 Cr.P.C.
4. On appearance of accused and after hearing on charges under
Section 228 (2) Cr.P.C., charges for the offences punishable u/Secs.366 IPC, 376 (3) IPC, u/Sec. 3 (a) r/w 4 of POCSO Act, u/Sec.5 (m) r/w 6 of POCSO Act, u/Sec.3 (1) (w) (i) of SC & ST (POA) Act and u/Sec.3 (2) (va) of SC & ST (POA) Act against accused were framed, read over and explained to accused in Telugu, for which the accused pleaded not guilty and claimed to be tried.
5. To prove the case of prosecution, Prosecution has examined PW-1 to PW-14 besides marking Ex.P-1 to Ex.P-9. The learned Special Public
Prosecutor has given up the evidence of LW-6/Kumpati Chinnamma,
LW-7/Gandalla Chenchamma, LW-8/Bolla Mahitha, LW-10/Thupili Yuvaraj Achari,
APNE160000042022 :-13:- cited as one of the mediators for observation of scene of offence,
LW-12/Ramisetty Mohan Babu cited as one of the mediators for arrest of accused, LW-14/Smt.E.Prasuna, the then II Additional Judicial Magistrate of First
Class, Nellore, who recorded the statement of PW-2/victim girl under Section 164 Cr.P.C., and LW-21/Sri Y.Harinatha Reddy, Sub Divisional Police Officer,
Nellore Rural, SPS Nellore District, who arrested the accused and filed charge sheet.
6. After closure of prosecution side evidence, the accused was examined
U/Sec.313 Cr.P.C., explaining the incriminating evidence available on record to him in Telugu, for which, the accused denied the same and reported no defence evidence.
7. Heard the learned Special Public Prosecutor for the State and learned defence counsel.
8.The points for determination are:
1. Whether the victim girl/PW-2 was a child within the meaning of section 2(d) of Protection of Children from Sexual Offences Act, 2012 or not?
2. Whether the prosecution has established that accused kidnapped or abducted PW-2/victim girl, aged 8 years, a minor girl with intent that PW-2/victim girl may be forced or seduced to illicit intercourse
APNE160000042022 :-14:- with accused for the offence punishable under Section 366 of Indian Penal Code (IPC) or not?
3. Whether the prosecution has established that accused committed rape on PW-2/victim girl, aged 8 years, a minor girl under twelve years of age by penetrating penis of accused into the mouth of PW-2/victim girl for the offence punishable under Section 376 AB of Indian Penal Code (IPC) or not?
4. Whether the prosecution has established that accused committed aggravated penetrative sexual assault on PW-2/victim girl, aged 8 years, a minor girl under twelve years of age for the offence punishable under Section 5 (m) r/w 6 of the Protection of the Children from Sexual Offences Act, 2012 or not?
5. Whether the prosecution has established that accused not being a member of schedule caste or a schedule tribe intentionally touched PW-2/victim girl, aged 8 years, a minor girl belonging to a schedule tribe, knowing that PW-2/victim girl belongs to a schedule tribe with sexual nature and without the recipient’s consent for the offence punishable under Section 3 (1) (w) (i) of SC & ST (POA) Act or not?
6. Whether the prosecution has established that accused kidnapped/abducted PW-2/victim girl aged 8 years a minor girl with intent to commit penetrative sexual assault on her knowingly that PW-2/victim girl is a member of schedule tribe for the offence punishable under Section 3 (2) (va) of SC & ST (POA) Act or not?
7. Whether the prosecution has established the case against the accused, beyond all reasonable doubt or not?
9.To prove the case of prosecution, prosecution has examined PW-1 to PW-14 besides marking Ex.P-1 to Ex.P-9 among them, PW-1/Gandalla Kumari
APNE160000042022 :-15:- cited as defaco complainant in this case is the mother of PW-2/Victim girl; PW-2 (Name with held) is cited as victim girl; PW-3/Gandalla Subrahmanyam is the father of PW-1/victim girl cited as hearsay witness; PW-4/Gandalla Lakshmi who is neighbour of scene of offence is cited as eyewitness; PW-5/Inamala
Seenamma who is friend of PW-2/victim girl is also cited as eyewitness;
PW-6/Dr.K.A.R.Reddy, worked as Assistant Professor, ACSR Government Medical
College, Nellore from September 2020 to April 2023 conducted potential examination on accused and issued potentiality certificate marked as Ex.P-2;
PW-7/Lingamgunta Amani working as Mahila Police at Vavveru village since 25.11.2019 is cited as one of the mediators for observation of scene of offence;
PW-8/Kasa Srinivasulu resident of Buchireddypalem is cited as one of the mediators for arrest of accused; PW-9/Sk.Hameed worked as Tahsildar at
Buchireddypalem Mandal from 16.07.2021 to 05.02.2022 issued caste certificates of PW-1/Gandalla Kumari and PW-2/victim girl marked as Ex.P-3 and
Ex.P-4 repsectively; PW-10/Dr.Sk.Khadar Bahsa worked as Civil Assistant
Surgeon, at Community Health Centre, Buchireddypalem from May 2017 to
May 2022 examined PW-2/victim girl and issued wound certificate of
PW-2/victim girl and final opinion after recept of Regional Forensic Science
APNE160000042022 :-16:-
Laboratwory Report marked as Ex.P-5 to Ex.P-8 respectively; PW-11/Peta Uma
Devi working as Head Mistress at Upper Primary School, Polinaidu Cheruvu village, Buchireddypalem Mandal since 15.01.2021 issued study certificate of
PW-2/victim girl marked as Ex.P-8; PW-12/A.Ayyappa working as Sub Inspector of Police at Kaluvoy police station since 08.05.2021 had registered this case and issued first information report; PW-13/Smt.P.Naga Sirisha working as Woman
Sub Inspector of Police, Disha Police Station, Nellore since March 2023 recorded the statement of PW-2/victim girl under Section 161 (3) Cr.P.C., and
PW-14/U.Nagaraju, worked as Deputy Superintendent of Police, Disha Police
Station, Nellore from February 2020 to September 2021 is the investigation officer in this case.
Point No.1:-
10.In order to prove that victim girl/PW-2 was aged about 8 years as on the date of offence and comes within the definition of child as defined under section 2 (d) of POCSO Act, 2012, prosecution got examined PW-11/Smt.Peta
Uma Devi, working as Head Mistress in Upper Primary School, Polinaidu
Cheruvu village since 15.01.2021 who issued study certificate of PW-2/victim girl marked as Ex.P-8, she deposed that on 17.08.2021 she issued study certificate
APNE160000042022 :-17:- of PW-2/victim girl by mentioning the date of birth of victim girl as 08.05.2012 and through her study certificate of victim girl/PW-2 is marked as Ex.P-8.
11.During cross-examination of PW-11/Smt.Peta Uma Devi, she candidly conceded that Ex.P-8/Study certificate discloses that PW-2/victim girl was studying 4th standard as on the date of issuance of Ex.P-8 and Ex.P-8 is silent that the PW-2/victim girl has studied in the said school from 1st standard and she categorically deposed that she noted the date of birth of PW-2/victim girl in Ex.P-8 as mentioned in school records. As could be seen from
Ex.P-8/Study and conduct certificate of PW-2/victim girl dated 17.08.2021 issued by PW-11/Smt.Peta Uma Devi, the recitals therein are mentioned as
PW-1/vicitm girl herein was a student of this institution in class IV during the period from 2021-2022, according to school records in the portion regarding the class from which PW-2/victim girl studied in Mandal Praja Parishath school,
Polinaidu Cheruvu village is kept blank for the reasons best known to
PW-11/Smt.Peta Uma Devi,Head Mistress in Upper Primary School, Polinaidu
Cheruvu village.
12.However, it is the evidence of PW-11/Smt.Peta Uma Devi, Head
Mistress in Upper Primary School, Polinaidu Cheruvu village that she noted the
APNE160000042022 :-18:- date of birth of PW-2/victim girl in Ex.P-8 as 08.05.2012 on due verification of school records and except putting a vague suggestion to PW-11/Smt.Peta Uma
Devi that the date of birth of PW-2/victim girl mentioned in Ex.P-8 is not the correct date of birth of PW-2/victim girl, the accused has not given the correct date of birth of PW-2/victim girl. Moreover, no suggestion was put to
PW-1/Gandalla Kumari and PW-2/victim girl denying age of PW-2/victim girl as 8 years and accused has also not denied PW-2/victim girl studying 4th standard during academic year 2021 to 2022 in Upper Primary School, Polinaidu Cheruvu village as on the date of offence and there is no reason for PW-11/Smt.Peta
Uma Devi being Head Mistress, Upper Primary School, Polinaidu Cheruvu village to mention in correct date of birth of PW-2/victim girl in Ex.P-8 and to depose wrong date of birth of PW-2/victim girl who is no way interested in
PW-2/victim girl or enemical to the accused and that from the evidence of
PW-11/Smt.Peta Uma Devi coupled with Ex.P-8/Study Certificate, it could be safely said that prosecution proved the age of victim girl/PW-2 as on the date of offence as “8 years” and her date of birth is “08.05.2012”. According to Sec.2(d) of Protection of Children from Sexual Offences Act, 2012, “child means any person below the age of eighteen years” hence, victim girl/PW-2 who was aged
APNE160000042022 :-19:- about “8 years” as on the date of offence comes under the definition of child as defined U/Sec.2(d) of Protection of Children from Sexual Offences Act, 2012.
Points Nos 2 to 4:-
13.Now, the point to be considered is whether aggravated penetrative sexual assault was committed on the victim girl/PW-2 and whether the accused is the perpetrator who committed aggravated penetrative sexual assault on the minor victim girl/PW-2.
14.Coming to this point, the foremost point to be discussed is the identity of the accused. In the case on hand, there is no dispute with regard to identity of accused as accused being a street vendor selling toys, eatables etc., carrying in bicycle, used to visit the village of PW-1/Gandalla Kumari (i.e.,)
Polinaidu Cheruvu village to sell eatables, toys and other items and the
PW-2/victim girl and other children used to buy eatables and other items from the accused and further during cross-examination of PW-1/Gandalla Kumari, who is none other than mother of PW-2/victim girl, the learned legal aid counsel for accused suggested to PW-1/Gandalla Kumari that as accused fallen near to her daughter/PW-2/victim girl due to sudden seizure in view of epilepsy, she foisted false case against the accused at the instance of
APNE160000042022 :-20:- neighbours on suspicion that accused might have caught holded hand of her daughter/PW-2/victim girl and she is deposing false at the instance of her villagers and also a suggestion to PW-2/victim girl that “as the accused fallen near to her due to attack of epilepsy, her mother/PW-1/Gandalla Kumari foisted this false case against the accused at the instance of neighbours and she is deposing false as tutored by her mother/PW-1/Gandalla Kumari, which are denied by PW-1 and PW-2 respectively. Therefore, from the above suggestions put to PW-1/Gandalla Kumari and PW-2/victim girl during their cross- examination by the accused clearly indicates that accused is admitting his presence at the alleged time and place of offence with PW-2/victim girl and further PW-2/victim girl has also identified the accused during her examination as the person who committed aggravated penetrative sexual assault on her when accused was shown to PW-2/victim girl by removing the screen therefore, it can be safely said that there is no dispute with regard to identity of accused.
15.In this case, the material and crucial witness is victim girl, examined as PW-2, her evidence is that while she was studying 4th standard, the accused who is a street vendor who used to sell toys and eatables by carrying in bicycle, gave her ballons and taken her inside a old house and made her to hold
APNE160000042022 :-21:- his penis and to keep his penis in her mouth, and also attempted to insert his penis inside her anus by bending her and on the arrival of her mother, the accused left the place and on enquiry she narrated her mother/PW-1/Gandalla
Kumari about the incident and thereafter her mother/PW-1/Gandalla Kumari lodged report to the police and she was examined by the police, police have also taken her to the hospital at Buchireddypalem, there doctor examined her and also to the Court, there her statement was recorded.
16.During cross-examination of PW-2/victim girl, PW-2/victim girl categorically deposed that at the time when the accused taken her with him offering balloons, her friend/PW-5/Inamala Seenamma was also present and the accused stationed his bicycle under a tree near the old house where the scene of offence is situated and denied the suggestion put to her that she has not stated before the magistrate as if accused asked her to hold his penis and inserted his penis inside her mouth and asked her to bend and she is deposing false as tutored by her mother who foisted false case against the accused at the instance of neighbours when accused fallen down near to her due to attack of
Epilepsy.
APNE160000042022 :-22:-
17.Coming to the evidence of PW-1/Gandalla Kumari cited as defacto complainant in this case and PW-3/Gandalla Subrahmanyam @ Subbarayudu cited as hearsay witnesses who are parents of PW-2/victim girl. PW-1/Gandalla
Kumari deposed that on 12.08.2021 while her daughter/PW-2/victim girl, aged 8 years was studying 3rd standard, went to the house of her grandfather to get money to purchase eatables and some time later PW-4/Gandalla Lakshmi came and informed her that accused who was a street vendor taken her daughter/PW-2/victim girl inside a colony house and made her daughter/PW-2/victim girl to hold his penis and also inserted his penis inside the mouth of her daughter/PW-2/victim girl then, immediately she rushed to the said house and accused went away. On enquiry her daughter/PW-2/victim girl narrated her that accused made her to hold his penis, undressed her and inserted his penis into her mouth and also made her to bend and inserted his penis inside her anus and on the next day she gave report to the police at
Buchireddypalem and ten days later herself and her daughter/PW-2/victim girl were taken to the Court, there their statements were recorded and through her report dated 13.08.2021 is marked as Ex.P-1.
APNE160000042022 :-23:-
(i).During cross-examination of PW-1/Gandalla Kumari nothing material is elicited from her to shaken the testimony of PW-1/Gandalla Kumari except putting a mere suggestion to her that “as accused fallen near her daughter/PW-2/victim girl due to sudden seizure in view of epilepsy, at the instance of neighbours she foisted false case against the accused on suspicion that accused might have caught hand of her daughter/PW-2/victim girl and she is deposing false which is denied by her.
18.A bare perusal of Ex.P-1/report dated 13.08.2021 categorically goes to show that on 12.08.2021 around 2.00 P.M., her daughter/PW-2/victim girl left home to go to the house of her grand father to take money on seeing accused, a street vendor selling eatables, ballons and toys etc., and sometime later
PW-4/Gandalla Lakshmi who is her sister-in-law informed her that accused has taken her daughter/PW-2/victim girl inside a vacant house and was misbehaving with her daughter/PW-2/victim girl by making her daughter to touch penis of accused and by inserting his penis into the mouth of her daughter/PW-2/victim girl, then she immediately ran to said house and on enquiry her daughter/PW-2/victim girl narrated her that accused gave her ballon and taken her inside the colony house and behaved indecently with her
APNE160000042022 :-24:- daughter/PW-2/victim girl by making her to touch penis of accused and by inserting into the mouth of her daughter/PW-2/victim girl and on seeing her arrival accused went away leaving her daughter/PW-2/victim girl and on 13.08.2021 after arrival of her husband/PW-3/Gandalla Subrahmanyam @
Subbarayudu home she gave report to the police.
19.The evidence of PW-1 is quite cogent, consistent and corroborative with the contents of report/Ex.P-1 and with the evidence of PW-2/victim girl in all material aspects with regard to accused visiting their village on 12.08.2021 around 2.00 P.M., and PW-2/victim girl aged 8 years leaving home for purchasing of eatables, accused who found PW-2/victim girl and her friend
PW-5/Inamala Seenamma gave ballons to them and taken them to a old house and taken PW-2/victim girl inside said house and made PW-2/victim girl to touch penis of accused and also inserted penis of accused inside the mouth of
PW-2/victim girl and on information through PW-4/Gandalla Lakshmi,
PW-1/Gandalla Kumari rushed to the scene of offence and on seeing
PW-1/Gandalla Kumari accused ran way and on enquiry, PW-2/victim girl narrated her about the incident and on the next day PW-1/Gandalla Kumari gave report to the police.
APNE160000042022 :-25:-
20.PW-3/Gandalla Subrahmanyam, who is husband of PW-1/Gandalla
Kumari and father of PW-2/victim girl cited as hearsay witness deposed that on 12.08.2021 night he returned home, his wife/PW-1/Gandalla Kumari and his daughter/PW-2/victim girl informed him that accused committed rape on his daughter/PW-2/victim girl and thereafter they went to Buchiredddypalem Police
Station and gave report to the police.
21.Prosecution also examined PW-4/Gandalla Lakshmi and
PW-5/Inamala Seenamma who are cited as eyewitnesses, PW-4/Gandalla
Lakshmi deposed that on 12.08.2021 at 2.00 P.M., she noticed accused taking
PW-2/victim girl and PW-5/Inamala Seenamma to a dilapidated house situated adjacent to their house, the accused kept PW-5/Inamala Seenamma outside the said house and taken Pw-2/vicitm girl inside the house by giving balloons to them and through the window she observed accused undressing PW-2/victim girl and inserted his penis inside the mouth of PW-2/victim girl and made
PW-2/victim girl to catch his penis, then, immediately she informed about the incident to the mother of PW-2/victim girl (i.e.,) PW-1/Gandalla Kumari and after arrival of PW-1/Gandalla Kumari there, accused escaped from the scene.
On enquiry by PW-1/Gandalla Kumari, her daughter/PW-2/victim girl narrated
APNE160000042022 :-26:-
PW-1/Gandalla Kumari about the incident and on the next day (i.e.,) on 13.08.2021 after arrival of PW-3/Gandalla Subrahmanyam home, PW-1/Gandalla
Kumari lodged report to the police. PW-5/Inamala Seenamma deposed that while herself and her friend/PW-2/victim girl were studying 3rd standard and were standing near a tree at 2.00 P.M., on one day, the accused who was a street vendor gave them balloons and taken them to a old house, accused taken PW-2/victim girl inside the said house keeping her outside.
22.It is significant to note that during cross-examination of
PW-4/Gandalla Lakshmi, PW-4/Gandalla Lakshmi candidly conceded that everyday accused used to visit their village for selling balloons and eatables and denied suggestion that on 12.08.2021 at 3.30 P.M., accused fallen on
PW-2/victim girl due to sudden attack of epilepsy and she informed the same to
PW-1/Gandalla Kumari and after that herself and PW-1/Gandalla Kumari beaten the accused and caused bleeding injuries to accused without heeding the words of accused that he fallen on PW-2/victim girl due to attack of epilepsy and a false case is foisted against the accused and to PW-5/Inamala Seenamma that when accused fallen on her friend/PW-2/victim girl due to sudden attack of epilepsy, this case is foisted against the accused at the instance of villagers by
APNE160000042022 :-27:- the mother of PW-2 (i.e.,) PW-1/Gandalla Kumari and accused never taken her and her friend/PW-2/victim girl to a old house and accused never taken her friend PW-2/victim girl inside the old house keeping her outside the house which are denied by PW-5/Inamala Seenamma. It is therefore, from the suggestions put to PW-4/Gandalla Lakshmi and PW-5/Inamala Seenamma accused is admitting his presence on 12.08.2021 at 3.30 P.M., at the alleged scene of offence situated at the village of PW-1/Gandalla Kumari and
PW-2/victim girl and according to accused, accused fallen near PW-2/victim girl and caught holded hand of PW-2/victim girl due to sudden seizure inview of attack of epilepsy.
23.It is therefore, from the evidence of PW-1/Gandalla Kumari,
PW-2/victim girl, PW-3/Gandalla Subrahmanyam, PW-4/Gandalla Lakshmi and
PW-5/Inamala Seenamma coupled with admission of accused about his presence at the scene of offence as well as presence of PW-2/victim girl, it is categorically established that on 12.08.2021 afternoon the accused a street vendor selling toys and eatables etc., by carrying in bicycle visited Polinaidu
Cheruvu village, the victim girl/PW-2 aged 8 years studying 3rd standard went near to the bicycle of accused along with her friend/PW-5/Inamala Seenamma
APNE160000042022 :-28:- and alleged offence was taken place and except putting mere suggestions to
PW-2/GAndalla Nirmala Kumari and PW-3/Gandalla Subrahmanyam that mother of PW-2/victim girl foisted false case against accused at the instance of villagers, no reasons are stated by the accused as to what made the villagers and mother of PW-2/victim girl to foist false case against the accused though according to accused he is suffering from epilepsy, and no medical record is filed by the accused to prove that PW-1/Gandalla Kumari caused bleeding injuries to the accused by beating the accused and no such suggestion was put to PW-1/Gandalla Kumari except putting said suggestion to PW-5/Inamala
Seenamma it is for the reasons best known to the accused and no animosity between accused and villagers/mother of PW-2/victim girl is pleaded by accused to foist false case against accused who was eking livelihood as a street vendor by selling eatables in their village. Further, no child will depose false and no parent will foist false case against any person with such grave allegation which ruins entire life of PW-2/victim girl and by staking life of PW-2/victim girl at risk..
24.Coming to the medical evidence on record, prosecution examined
PW-10/Dr.Shaik Khadar Basha, who examined PW-2/victim girl and issued wound certificate of PW-2/victim girl dated 13.08.2021 and also final opinion
APNE160000042022 :-29:- after receipt of Regional Forensic Science Laboratory report and
PW-6/Dr.K.Ananatha Rupesh worked as Assistant Professor at ACSR Medical college, Nellore from September 2020 to April 2023 who conducted potentiality examination on accused.
25.PW-10/Dr.Shaik Khadar Basha worked as Civil Assistant Surgeon at
Community Health Centre at Buchireddypalem from May 2017 to May 2022 deposed that on 13.08.2021 about 1.20 P.M., he examined PW-2/victim girl and he found no external injuries, he referred PW-2/victim girl to gynecologist
B.Swetha, Dr.B.Swetha examined PW-2/victim girl and her findings are breasts no injuries, not developed, secondary sexual characters not developed and on local examination pubic hair absent, no external injuries on vulva and vagina and are normal, specimens of nails, scalp hair, vaginal swab, vaginal smear, cervical swab and cervical smear are collected for chemical analysis and received R.F.S.L., report and he was of opinion basing on Regional Forensic
Science Laboratory report and clinical examination of gynecologist that “there is no evidence of sexual intercourse” accordingly he issued final opinion and through him wound certificate of PW-2/victim girl dated 13.08.2021, Regional
Forensic Science Report and final opinion are marked as ExP-5 to Ex.P-7
APNE160000042022 :-30:- respectively. During cross-examination of PW-10/Dr.Sk.Khadar Basha,
PW-10/Dr.Sk.Khadar Basha categorically deposed that the mother of
PW-2/victim girl was given the history as such he noted the date and time of offence in the history portion as 12.08.2021 at 3.30 P.M. It is therefore, the evidence of PW-10/Dr.Sk.Khadar Basha is crystal clear that he examined
PW-2/victim girl on 13.08.2021 at 1.20 P.M., (i.e.,) on the next day of offence and in the history portion he noted the date and time of offence ascertaining from the mother of PW-2/victim girl (i.e.,) PW-1/Gandalla Kumari and PW-2/victim girl was also examined by a Gynecologist Dr.Sweta, who collected and preserved specimens of nails, scalp hair, vaginal swab, vaginal smear, cervical swab and cervical smear only though the contents of the report is crystal clear that accused made PW-2/victim girl to touch his penis and to keep his penis inside the mouth of PW-2/victim girl and behaved indecently and no swabs from the mouth of PW-2/victim girl were taken, it is for the reasons best known to the medical officers and the prosecution and it is also not the case of the prosecution and the evidence of prosecution witnesses PW-1/Gandalla Kumari,
PW-2/victim girl, PW-3/Gandalla Subrahmanyam @ Subbarayudu,
PW-4/Gandalla Lakshmi and PW-5/Inamala Seenamma that accused committed
APNE160000042022 :-31:- sexual intercourse by penetrating penis of accused inside the vagina of
PW-2/victim girl and that the final opinion of Medical Officer that “there is no evidence of sexual intercourse” is no way useful to the case of prosecution to prove “oral sex” committed by accused by penetrating penis of accused inside the mouth of PW-2/victim girl who was aged 8 years and under the age of 12 years and accused is charged for the offence under Section 5 (m) r/w 6 of
POCSO Act and Section 376AB IPC.
26.Evidence of PW-6/Dr.K.Ananatha Rupesh worked as Assistant
Professor at ASCR Medical College, Nellore from September 2020 to April 2023 deposed that on 23.10.2021 he conducted potency test on the accused and issued potentiality certificate opining that “there is nothing to suggest that the individual examined is not capable of performing act of sexual intercourse” and through him potency certificate was marked as Ex.P-2. Evidence of
PW-6/Dr.K.Ananatha Rupesh is also supporting the evidence of PW-1/Gandalla
Kumari, PW-2/Gandalla Nirmala Kumari, PW-3/Gandalla Subrahmanyam,
PW-4/Gandalla Lakshmi and PW-10/Dr.Sk.Khadar Basha that accused is “capable of performing act of sexual intercourse”.
APNE160000042022 :-32:-
27.In this context it is necessary to note the definition of Penetrative
Sexual Assault incorporated under Section 3 of POCSO Act clause (a) of Section 3 reads thus:-
3. Penetrative sexual assault:- A person is said to commit “Penetrative Sexual Assault” if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person.
Section 5 of Protection of Children from Sexual Offences Act defines aggravated penetrative sexual act clause (m) of Section 5 reads thus:-
5.Aggravated penetrative sexual assault:-
(m) whoever commits penetrative sexual assault on a child below twelve years.
The evidence of PW-2/victim girl that accused inserted his penis into her mouth is held reliable as discussed above, the said act of accused attracts the ingredients of aggravated penetrative sexual assault as defined under Section 5
(m) of POCSO Act establishing victim girl’s age as an autonomous aggravating factor. Since the accused committed penetrative sexual assault on PW-2/victim girl aged below 12 years the said assault becomes aggravated IPSO facto and accused is liable for punishment under Section 6 of POCSO Act.
APNE160000042022 :-33:-
28.In this context, I rely on the judgment of Hon’ble Supreme
Court in State of Uttar Pradesh Vs.Sonu Kushwaha on 05.07.2023 in
Criminal Appeal No.1633 of 2023.
(i).In the above reported case the accused asked victim boy who was aged about 10 years to suck his penis and put his penis into the mouth of victim boy. The accused was prosecuted for the offences under Sections 377 and 506
IPC and under Section 5 (m) r/w 6 of POCSO Act. The accused was convicted by the trial court for the said offences and on appeal the Hon’ble High Court of
Judicature at Allahabad, held that the accused was guilty of penetrative sexual assault punishable under Section 8 of POCSO Act and not guilty of aggravated penetrative sexual assault punishable under Section 6 of POCSO Act and confirmed the sentence imposed by the trial court, the Hon’ble Supreme Court observed in para 9 that “considering the finding recorded in paragraph 16 of the impugned judgment, obviously in this case, the respondent has committed an offence of aggravated penetrative sexual assault as he has committed penetrative sexual assault on a child below twelve years. Clause (m) of Section 5 is attracted in this case”.
APNE160000042022 :-34:-
29.In the instant case, the PW-2/victim girl is aged below 12 years and in the reported case also the victim boy is below 12 years of age and in the instant case the accused put his penis inside the mouth of PW-2/victim girl and in the reported case the accused put his penis in the mouth of victim boy, as such the facts of the instant case and the reported case are similar to each other. Following the observations in reported case and the facts of this case, it is held that the accused committed aggravated penetrative sexual assault as defined under Section 5 (m) of POCSO Act and accused is liable to be punished under Section 6 of POCSO Act.
30.Prosecution also examined PW-7/Lingamgunta Amani, working as
Mahila Police at Ovveru since 25.11.2019 cited as one of the mediators for observation of scene of offence and PW-8/Kasa Srinivasulu resident of
Buchireddypalem cited as one of the mediators for arrest of accused.
31.PW-7/Lingamgunta Amani deposed that on 17.08.2021 at the request of Deputy Superintendent of Police she acted as one of the mediators for observation of scene of offence situated at the house of LW-6/Kumpati
Chinnamma along with LW-10/Thupili Yuvaraj, there Deputy Superintendent of
Police observed the scene, taken photographs of scene of offence and obtained
APNE160000042022 :-35:- their signatures. During cross-examination of PW-7/Lingamgunta Amani nothing is elicited from her to disprove her evidence except putting suggestions denying her presence at the time of observation of scene of offence by the police. The evidence of Pw-7/Lingamgunta Pavani is corroborating the evidence of PW-1/Gandalla Kumari, PW-2/victim girl, PW-3/Gandalla Subrahmanyam,
PW-4/Gandalla Lakshmi and PW-5/Inamala Seenamma with regard to the scene of offence situated at the house of LW-6/Kumpati Chinnamma.
32.PW-8/Kasa Srinivasulu deposed that on 18.08.2021 at 8.45 A.M., on information from Sub Inspector of Police, he went to Buchireddypalem police station, from there Deputy Superintendent of Police taken him to the Bus Stop, there police arrested the accused in his presence and accused admitted his guilt of commission of offence before the police and he duly attested arrest- cum-confession mahazar. The evidence of PW-8/Kasa Srinivasulu is hit under
Section 25 of Indian Evidence Act as any confession made before police officer is not admissible in evidence.
33.Coming to the evidence of police personnels (i.e.,)
PW-12/A.Ayyappa, working as Sub Inspector of Police, Kaluvoyi Police Station since 08.05.2021, PW-13/P.Naga Sirisha, who has been working as woman Sub
APNE160000042022 :-36:-
Inspector of Police, Disha Police Station, Nellore since March 2023 and
PW-14/U.Nagaraju worked as Deputy Superintendent of Police at Disha Police
Station, Nellore from February 2020 to September 2021. PW-12/A.Ayyappa, working as Sub Inspector of Police, Kaluvoyi Police Station since 08.05.2021 deposed that on 13.08.2021 at 10.30 P.M., PW-1/Gandalla Kumari came to police station and lodged report to the police, he registered this case in crime
No.303/2021 for the offences under Sections 376, 363 IPC and Section 6 r/w 5
(m) of POCSO Act, 2012 and Sections 3 (1) (wi) and Section 3 (2) (va) of SC & ST (POA) Act, 2015 and he submitted first information report to the Court and its copies to the concerned officials, investigation in this case was taken up by
PW-14/U.Nagaraju worked as Deputy Superintendent of Police at Disha Police
Station, Nellore from February 2020 to September 2021.
34.PW-13/P.Naga Sirisha, working as woman Sub Inspector of Police,
Disha Police Station, Nellore since March 2023 deposed that on 17.08.2021 she recorded the statement of PW-1/Gandalla Kumari as well as PW-2/victim girl on the instructions of PW-14//U.Nagaraju worked as Deputy Superintendent of
Police at Disha Police Station, Nellore from February 2020 to September 2021 and handed over the same to PW-14//U.Nagaraju worked as Deputy
APNE160000042022 :-37:-
Superintendent of Police at Disha Police Station, Nellore from February 2020 to
September 2021.
35.PW-14/U.Nagaraju worked as Deputy Superintendent of Police at
Disha Police Station, Nellore from February 2020 to September 2021 deposed that on receipt of authorization memo from the then Superintendent of Police,
Nellore District, he proceeded with investigation in this case, he verified the CD file. On 17.08.2021 he continued with the investigation in this case, visited
Buchireddypalem Police Station there he secured Inspector of Police and Sub
Inspector of Police and also sachivalayam staff and visited scene of offence, on his instructions PW-13/P.Naga Sirisha, Woman Sub Inspector of Police, Disha
Police Station, Nellore city examined PW-1/Gandalla Kumari, PW-2/victim girl and PW-5/Inamala Seenamma and recorded their statements and he examined
PW-3/Gandalla Subrahmanyam, PW-4/Gandalla Lakshmi, LW-6/Kumpati
Chinnamma, LW-7/Gandalla Chenhamma and LW-8/Bala Mahitha and recorded their statements and also observed the scene of offence in the presence of mediators PW-7/Lingamgunta Amani and LW-10/Thupili Yuvaraj and drew rough sketch of the scene of offence.
APNE160000042022 :-38:-
36.At the scene of offence PW-14/U.Nagaraju/Investigation Offier seized a cement colour gown with white dots having yellow colour border under cover of police proceedings dated 17.08.2021 produced by mother of
PW-2/victim girl, at that stage as the property produced before the Court was not tallied with the property mentioned in the property form and with the property mentioned in the police proceedings dated 18.08.2021, chief- examination of PW-14/U.Nagaraju was deferred at the request for production of correct property seized from the possession of mother of PW-2/victim girl in this case, but, no property was produced by the prosecution in this case and
PW-14/U.Nagaraju/Investigation officer was also not turnup to the Court for continuation chief-examination and for cross-examination inspite of granting several adjournments and even on conditional orders and as there is no other go this Court closed the evidence of PW-14/U.Nagaraju/Investigation officer and no steps are taken by the prosecution to recall and to re-examine
PW-14/U.Nagaraju/Investigation Officer and to produce correct seized property forthereasonsbestknowntoprosecutionandto
PW-14/U.Nagaraju/Investigation Officer.
APNE160000042022 :-39:-
37.In this case the material independent witnesses have been examined by the prosecution but PW-14/U.Nagaraju/Investigation Officer is not examined despite several adjournments were given to secure the
PW-14/U.Nagaraju/Investigation Officer and no steps are taken by prosecution to produce PW-14/U.Nagaraju/Investigation Officer and the seized property by recalling him as provided under Section 311 Cr.P.C. Now, it has to be seen whether non-examination of PW-14/U.Nagaraju/Investigation Officer in the circumstances of the case is fatal to the prosecution. In this case
PW-12/A.Ayyappa and PW-13/P.Naga Sireesha who registered this case basing on the report of PW-1/Gandamalla Kumari and issued first information report and PW-13/P.Naga Sirisha, Woman Sub Inspector of Police, Disha Police Station,
Nellore city who recorded statements of PW-1/Gandalla Kumari and
PW-2/victim girl and PW-5/Inamala Seenamma were examined and accused has also got an opportunity to cross-examine PW-12/A.Ayyappa and
PW-13/P.Naga Sireesha and evidence of PW-14/U.Nagaraju who is Investigation
Officer in this case who examined PW-3/Gandalla Subrahmanyam and
PW-4/Gandalla Lakshmi and other witnesses cited as LW-6/Kumpati
Chinnamma, LW-7/Gandalla Chenchamma and LW-8/Bolla Mahithain the list of
APNE160000042022 :-40:- witnesses is in routine manner. It is settled principle that non-examination of
Investigation Officer is fatal to the case of prosecution when it causes prejudice to the accused. The question of prejudice arises when there are omissions and contradictions elicted in the cross-examination of prosecution witnesses. As seen from evidence of PW-4/Gandalla Lakshmi and PW-5/Inamala Seenamma, no omissions or contradictions are elicited from them. As already discussed in the evidence of prosecution witnesses PW-4/Gandalla Lakshmi and
PW-5/Inamala Seenamma, there are no omissions or contradictions and in this case no prejudice is caused to the accused for non-examination of
PW-14/U.Nagaraju/Investigation Officer who partly investigated the case and non-examination of PW-14/U.Nagaraju/Investigation Officer is not fatal to the case of prosecution in this case.
38.On going through the overall evidence placed before this court both oral and documentary, it is very clear that the victim girl/PW-1 is a minor girl aged about “8 + years” as on the date of offence and the same is supported by age proof certificate of victim girl/PW-2 issued by PW-11/Smt.Peta Uma Devi,
Head Master, Mandal Praja Parishath Upper Primary School, Polinaidu Cheruvu,
Buchireddypalem Mandal, which shows the date of birth of victim girl/PW1 as
APNE160000042022 :-41:- “08.05.2012”. Further, the evidence of PW-1/Gandalla Kumari, PW-2/victim girl,
PW-4/Gandalla Lakshmi and PW-5/Inamala Seenamma are also crystal clear that the accused being street vendor used to visit village (i.e.,) Polinaidu Cheruvu village to sell eatables, toys and other items by carrying in bicycle and
PW-2/victim girl and other children used to buy eatables and other items from the accused and in that process accused taken PW-2/victim girl inside the house keeping PW-5/Inamala Seenamma outside the house giving balloons to them, accused undressed PW-2/victim girl and inserted his penis inside the mouth of
PW-2/victim girl and made PW-2/victim girl to catch his penis supported by direct eyewitnesses (i.e.,) PW-4/Gandalla Lakshmi and PW-5/Inamala
Seennamma. Moreover, there is no reason for victim girl/PW-2 to depose false against the accused with such grave allegations and no girl will come forward to depose false allegations against any person with such heinous allegations which ruins her entire life and by staking her life at risk.
39.Therefore, the entire evidence placed before the court is pointing out that accused taken PW-2/victim girl inside the house keeping
PW-5/Inamala Seenamma outside the house giving balloons to them, accused
APNE160000042022 :-42:- undressed PW-2/victim girl and inserted his penis inside the mouth of
PW-2/victim girl and made PW-2/victim girl to catch his penis.
40. It is also well settled law that if the Court satisfied from the evidence of victim, a conviction can be solely based on such evidence without looking for further corroboration. As the victim of rape or any other sexual offence can be treated as injured witness. “In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society (vide decision in Harwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC
753). So the evidence of prosecutrix is more reliable than that of injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement. Therefore, victim of rape case is more reliable than injured witness and when victim itself is injured one should bear in mind that their presence at the time and place of the occurrence cannot be doubted, they do not have any
APNE160000042022 :-43:- reason to omit the real culprits and implicate falsely the accused persons and the evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
41.The evidence of all prosecution witnesses is consistent and corroborating with each other and establishing the guilt of the accused and the act done by the accused attracts the ingredients of the Secs. 366, 376 AB of IPC and Sec.5(m) r/w 6 of Protection of Children from Sexual offences Act, 2012.
Sec.366 of IPC:Kidnapping, abducting or inducing woman to compel
her marriage, etc., reads as follows:
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term
APNE160000042022 :-44:- which may extend to seven years, and shall also be liable to fine.
Section 376AB IPC: Punishment for rape on woman under twelve
years of age:
Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death.
Sec.5 aggravated penetrative sexual assault (m) of Protection of
Children from Sexual Offences Act, 2012 :
(m) whoever commits penetrative sexual assault on a child below twelve years;
Section 6 of POCSO Act :
6. Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
42.The offence alleged against accused is U/Sec.5(m) r/w 6 of
Protection of Children from Sexual Offences Act, 2012. As per Sec.29 of the act
APNE160000042022 :-45:- the Court shall presume that accused has committed or attempted to commit rape as the case may be, unless the contrary is proved. When victim girl/PW-2 categorically deposed that accused inserted his penis inside her mouth and made PW-2/victim girl to catch his penis, it is for the accused to rebut the presumption by proving his contention beyond reasonable doubt.
43.Section 29 of the Protection of children from Sexual Offences Act, 2012 speaks as follows:
“where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of this Act, the special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved”.
44. The accused failed to rebut the presumption laid down under section 29 of POCSO Act by adducing oral or documentary evidence and even during examination of accused U/Sec.313 Cr.P.C enabling him to explain the incriminating circumstances appearing in the evidence against him, no explanation is offered by the accused except claiming that false case is foisted against him and he has not committed any offence.
APNE160000042022 :-46:-
Points Nos.5 & 6:-
45.In this case in order to prove that the PW-2/victim girl belongs to
SC/ST community and the accused belongs to other than SC/ST community, the prosecution examined PW-9/S.M.Hamid worked as Tahsildar at
Buchireddypalem mandal from 16.07.2021 to 05.02.2022, he deposed that he instructed his Village Revenue Officer and Mandal Revenue Inspector to enquire about caste of PW-1/Gandalla Kumari and PW-2/victim girl and for report basing on requisition of Sub Inspector of Police and on receipt of report, he issued caste certificates of PW-1/Gandalla Kumari and PW-2/victim girl as schedule tribe (Yanadi) and through him caste certificates of PW-1/Gandalla
Kumari and PW-2/victim girl were marked as Ex.P-3 and Ex.P-4 respectively.
46.Ex.P-3 and Ex.P-4 categorically goes to show that PW-1/Gandalla
Kumari and PW-2/victim girl are belonging to “ST Yanadi community”. Except filing caste certificates of PW-1/Gandalla Kumari and PW-2/victim girl marked as
Ex.P-3 and Ex.P-4 showing that PW-1/Gandalla Kumari and PW-2/victim girl are belongs to “ST Yanadi community”, no caste certificate of accused is produced by the prosecution to prove that accused belongs to non-ST community and there is no explanation from the Investigation Officer as to why he has not
APNE160000042022 :-47:- secured Caste Certificate of accused for the reasons best known to the
Investigation Officer and to the prosecution. Absolutely there is no evidence on record to show that accused is non-SC/ST community and prosecution utterly failed to prove that accused belongs to non-SC/ST community. Therefore, in view of the above discussion, this Court is of the considered opinion that the prosecution has failed to establish its case against the accused for the offences punishable under Sections 3 (1) (w) (i) of SC/ST (POA) Act and 3 (2) (va) of SC & ST (POA) Amened Act, 2015.
47. In the result the accused is found guilty for the offences punishable U/Secs.366 and 376AB of IPC and section 5(m) r/w 6 of POCSO Act 2012 and he is convicted under section 235(2) of Cr.P.C for the said offences.
(i).The accused is found not guilty for the offences punishable under
Sections 3 (1) (w) (i) of SC/ST (POA) Act and 3 (2) (va) of SC & ST (POA) Amened
Act, 2015 and he is acquitted under Section 235 (1) Cr.P.C.
Typed to my dictation by the Stenographer grade-III directly, corrected by me and pronounced by me in the open court on this the 28th day of April 2026.
Sd/- Ciripireddy Suma,
Special Judge for Speedy Trial of Offences
under POCSO Act, Nellore.
APNE160000042022 :-48:-
48.When questioned the accused regarding quantum of sentence, he pleaded that he is suffering from epilepsy, he is having old aged wife of 70 years and except himself, there is none to look after the welfare of his wife and pleaded mercy of the court. After hearing the accused this court is of the considered opinion that a lenient view cannot be taken against him as the offence committed by him is against the minor victim girl below 12 years age, which is grave and heinous in nature.
49. Section 42 of The Protection of Children from Sexual Offences Act, 2012 Alternate Punishment speaks as follows:- "When 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, 376AB, 376-8, 376-C. 376-D, 376DA, 376DB or Section 509 of the Indian Penal Code (45 of 1860), 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".
50.In view of Section 42 of POCSO Act, as the victim girl is a minor below the age of 12 years, punishment prescribed for the offence Under
Sec.376AB IPC and Sec.5(m) r/w 6 of Protection of Children from Sexual
Offences Act, 2012 are similar punishments, the accused is punished and
APNE160000042022 :-49:- sentenced to rigorous imprisonment for a period of twenty (20) years and to pay a fine of Rs.5,000/- (Rupees five thousand only) for the offence
U/Sec.5(m) of Protection of Children from Sexual Offences Act, 2012 punishable
U/Sec.6 of Protection of Children from Sexual Offences Act, 2012, and in default of payment of fine amount, he has to further undergo Simple Imprisonment for a period of 2 (two) months.
(i).The accused is further sentenced to undergoRigorous imprisonment for a period of 5 years (five) for the offence punishable
U/Sec.366 of IPC and to pay a fine of Rs.2,000/- (Rupees two thousand only), in default of payment of fine he shall undergo simple imprisonment for a period of one (1) month.
(ii).The fine amount of Rs.5,000/- (Rupees five thousand only) shall be paid to the victim girl/PW-2 as enunciated under Section 6(2) of the
Protection of Children from Sexual Offences Act, 2012 (Amendment) Act, 2019 towards compensation for her mental agony, pain and sufferance.
(iii).All the substantive sentences shall run concurrently and default sentences shall run consecutively.
APNE160000042022 :-50:-
(iv).The remand period of accused which was undergone by him during investigation and trial i.e., from 20.08.2021 to 16.07.2022 shall be set off as required under section 428 of Cr.P.C.
(v). The unmarked case property if any shall ordered to be destroyed, after the expiry of appeal period.
(vi). The accused is appraised about his right to prefer an appeal against this judgment before the Hon'ble High Court and he is further informed that he will be provided legal-aid counsel, if required. Free copy of Judgment is supplied to him.
(vii). As the accused is convicted for the offences U/Sec.5(m) of
Protection of Children from Sexual Offences Act, 2012 punishable U/Sec.6 of
Protection of Children from Sexual Offences Act, 2012 for committing aggravated penetrative sexual assault on the victim girl/PW-2 aged 8 years, impact of the offence reflects on her future, this court is of considered opinion that the victim girl/PW-1 has to be compensated for her trauma, considering the facts and circumstances of the case this court deems it fit, awarding compensation of Rs.4,00,000/- (rupees four lakhs only) to the victim girl/PW-2 would meet the ends of justice. As the accused pleaded that he has no
APNE160000042022 :-51:- properties and admittedly the victim girl/PW-2 is aged 8 years against whom the accused committed aggravated penetrative sexual assault is entitled to claim compensation which shall be payable by the State Government out of funds available under Andhra Pradesh Victim Compensation Scheme, compensation of Rs.4,00,000/- (Rupees four only) to the victim girl/PW-2 shall be payable by the District Collector, Nellore from Victims Compensation Scheme funds through District Legal Services Authority, Nellore. The compensation amount awarded to minor victim girl/PW-2 shall be kept in fixed deposit in the name of minor victim girl/PW-2 by showing PW-1/Gandalla Kumari mother of
PW-2/victim girl as guardian till PW-2/victim girl attains the age of majority and
PW-1/Gandalla Kumari is entitled to withdraw the interest every month for the benefit of minor. The office is directed to furnish a copy of judgment to District
Collector, Nellore for paying compensation to the PW-2/victim girl as awarded by this Court.
Typed to my direct dictation by the Stenographer Grade-III, corrected and
pronounced by me in the open Court, on this the 28th day of April 2026.
Sd/- Ciripireddy Suma,
Special Judge for speedy Trial of Offences
under POCSO Act, Nellore.
APNE160000042022 :-52:-
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution : For Defence :
PW-1Gandalla Kumari (Defacto complainant -None - and mother of PW-2/victim girl); PW-2Victim girl (Name with held);- PW-3Gandalla Subrahmanyam (Father of - PW-2/victim girl); PW-4Gandalla Lakshmi (sister in law and direct - eyewitness); PW-5Inamala Seenamma (friend of - PW-2/victim girl); PW-6Dr.K.Ananatha Rupesh (Issued - potentiality certificate of accused); PW-7Lingamgunta Amani (Mediator for - observation of scene of offence); PW-8Kasa Srinivasulu (Mediator for arrest of - accused); PW-9S.M.Hamid (Tahsildhar) who issued caste - certificates; PW-10Dr.Shaik Khader Basha (Medical Officer);- PW-11Peta Uma Devi (Head Master, who issued - study certificate of PW-2/victim girl);
PW-12A.Ayyappa (Investigation Officer, who - registered the present case); PW-13P.Naga Sirisha (Woman Sub Inspector of - Police, who recorded the statement of PW-1 and PW-2; PW-14U.Nagaraju (Investigation Officer).-
DOCUMENTS MARKED
For Prosecution : Ex.P-1: Report dated 13.08.2021;
APNE160000042022 :-53:-
Ex.P-2: Potency certificate of accused;
Ex.P-3:Caste certificate of PW-1;
Ex.P-4:Caste certificate of PW-2;
Ex.P-5:Wound certificate of PW-1 dated 13.08.2021;
Ex.P-6:R.F.S.L., report;
Ex.P-7:Final opinion;
Ex.P-8:Study certificate of PW-2/victim girl
Ex.P-9:Original first information report; For Defence :- - Nil –
MATERIAL OBJECTS MARKED
-NIL-
Sd/- Ciripireddy Suma,
Special Judge for speedy Trial of Offences under
Protection of Children from Sexual Offences
Act, Nellore.
Copy submitted to: - The Hon’ble Registrar (Judicial), High Court of Andhra Pradesh, Nelapadu, Amaravathi, Guntur District. Copy to:-
1. Station House Officer, Buchireddypalem police station.
2. The Special Public Prosecutor, POCSO Court, Nellore.
3. The Secretary, District Legal Services Authority, Nellore.
4. The District Collector, SPSR Nellore District.
// True copy //
Sd/- Ciripireddy Suma,
Special Judge for speedy Trial of Offences under Protection
of Children from Sexual Offences Act, Nellore.