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IN THE COURT OF THE I ADDITIONAL METROPOLITAN SESSIONS
JUDGE-CUM–SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT: AT
HYDERABAD
Present: Sri.D.Thirumala Rao,
I Addl. Metropolitan Sessions Judge–cum-
Special Judge for Trial of Offences under
Protection of Children from Sexual Offences
Act, Hyderabad.
DATED THIS THE 15TH DAY OF FEBRUARY, 2017
PCS SESSIONS CASE NO.36 OF 2015
Crime Number and Police StationCr.No.60 of 2014 of Nampally PS, Hyderabad. Name and description of the accused Gabatti Prashanth, s/o. G.Ramulu aged person19 years, occ: Labour, H/o.11-6- 192/3/A/2, Door No. 30, Andalamma Basthi, Near Nampally Railway Station, Hyderabad, N/o. Mailaram village, Raparti Mandal, Warangal District. Name and description of the complainantThe State represented by the Inspector of Police, Nampally Police Station, Hyderabad. Prosecution conducted bySri K. Pratap Reddy, Additional Public Prosecutor. Defence conducted bySri M. Venkat Ramana Yadav, Counsel for the Accused. Offences chargedUnder Section 376 (2) (i) IPC and Sec. 6 r/w 5(m) of the Protection of Children from Sexual Offences Act, 2012. (After Amendment) Plea of the accusedPleaded not guilty. Finding of the CourtFound guilty. RESULTIn the result, accused is found guilty for the offence punishable Section 6 r/w 5(m) of the Protection of Children from Sexual Offences Act, 2012 and the accused is convicted under Section 235(2) Cr.P.C and sentencedtoundergoRigorous Imprisonment for a period of Ten years and also imposed a fine of Rs.1,000/- and in default to undergo simple imprisonment for two months for the offence under Section 6 r/w 5(m) of the Protection of Children from Sexual Offences Act, 2012. Further, the accused is found guilty for the offence punishable under Section 376(2)(i) of IPC and convicted under Section 235(2) Cr.P.C and sentenced to undergo Rigorous Imprisonment for a period of Ten years and also imposed a fine of Rs.1,000/- and in default to undergo simple imprisonment for two months for the offence under Section 376(2)(i) of IPC.
:: J U D G M E N T ::
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1The Inspector of Police, Nampally police station, Hyderabad, has laid charge sheet against the accused in Crime No 60 of 2014 for the offence under Sections Under section 376 (2) (i) IPC and Sec. 4 of the The Protection of Children from Sexual Offences Act, 2012.
2The brief facts of the prosecution case are that on 01-03-2014 at 6.30 hours PW.1 came to the police station and reported orally. PW8 reduced the same into writing wherein PW.1 stated that she was residing at Andalamma
Basthi, Near Nampally Railway Station, Hyderabad, along with her husband and three children. She is having two daughters and one son. Her elder daughter is aged 12 years, and the victim is her younger daughter who is aged 8 years (victim name is not disclosed as per the Act) and her son is aged about 7 years.
The Victim girl was learning Urdu and English from a teacher by name Sony and she used to go to attend tuition at 4.00 pm and return by 7.30 pm. As usual on 28.02.2014 the victim girl went to tuition and returned at 7.30 pm. After that
PW.1 went to Chirag-Ali-Lane for shopping along with her husband PW.3 and returned at about 9.00 pm. At that time, PW1 found her victim daughter PW.2 went missing. PW1 enquired with her elder daughter and son. But they didn't give any reply. Further, PW1 started searching for her victim in her colony and at about 9.30 p.m, she went to Prashanth's (accused) house and knocked the door with the help of his Aunty Pullamma but the accused he did not open the door. As they felt that he was in sleep, they left from his residence. On the same night at about 01.00 a.m. they returned home after searching. After that at about 1.30 a.m. the accused came to her husband LW.3 Zahir Ahmed Ansari and asked for 'Beedi' and LW3 Zahir Ahmed Ansari, gave a 'Beedi' to the accused. After that LW3 informed the accused that PW.2 went missing and ked him whether he had seen her or not. Then the accused informed that PW.2 came to his house and shown her. LW3 found PW.2 sleeping in the room of the accused. Then LW3 Zahir Ahmed Ansari woke up PW.2 and brought to their
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residence and enquired with the PW2. Then the PW2 victim girl informed that while she was watching T.V at the house of the accused, the accused bolted the door and switched off the lights and removed her pant and his pant and slept on her. When she was trying to get up, the accused threatened her and when they were knocking the door, the accused closed the mouth of PW2. On hearing the same from the victim PW2, PW.1 went to the house of the accused and found that the accused had already escaped from his house. Hence PW.1 requested to take necessary action against the accused.
After reducing the oral statement of PW.1 on 01-03-2014 at 7.45 a.m. PW.8 registered a case in Crime No. 60/2014 under Section 376 IPC and
Section 4 of the Protection of Children From Sexual Offences Act, 2012 and the case file was handed over to PW.12 for investigation.
During the course of investigation, PW.12 examined PW.1, LW3
Zahari Ahmad Ansari and recorded their detailed statements. PW.12 further secured the presence of PW.9 and got recorded the statement of PW.2 victim girl. and sent the victim PW2 for Medical Examination and for the Age
Determination with the escort of LW.12 Ch. Malathi, WPC 4044 and her parents
PW.1 and LW.3. Further PW.12 visited the spot and examined PW.10 and PW.3 and recorded their detailed statements.
While the investigation was in progress to apprehend the accused, on reliable information PW.12 deputed his staff LW.14 Mohd Kaiser Khan and
LW.15 Ch Sandeep Kumar to apprehend the accused. The deputed staff apprehended the accused at Public Gardens, Nampally on 01-03-2014 at 4.00 p.m and produced him before PW.12. Further PW.12 examined the accused and on enquiry the accused disclosed his particulars and confessed his guilt in this case. PW.12 secured the presence of LW.10 Mohd Alam and PW.5 and recorded the confessional statement of the accused and seized the clothes of the accused worn by him as under MO.3 and MO.4 as the clothes were worn by him during the commission of offence.
In pursuance of the confession of accused, PW.12 along with
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panchas LW.10 Mohd Alam and PW.5 and staff led by the accused proceeded to the scene of offence and opened the lock of the door in the presence of panchas and conducted scene of offence panchanama and drafted rough sketch of the scene and also seized MO.5 which was laid on the cot. Later, PW.12 returned to
PS along with the accused at 22.00 hours and effected the arrest of the accused and after completion of the formalities, the accused got remanded to judicial custody.
During the course of further investigation, PW.12 again visited the scene of offence on 02-03-2014 and examined LW.6 V. Lakshmi, PW.4, LW.8
Andalamma, LW.9 Shivraj and recorded their detailed statements.
PW.7, Doctor examined the victim PW.2 and opined that the age of victim PW.2 is about eight years. PW.6, Doctor examined victim PW.2 and collected vaginal swabs, one vaginal smear from the victim, nails and hair of
PW.2 under MO.1 and MO.2 and the same items along with MO.3 and MO.4 of accused were forwarded to APFSL for examination and report.
LW.18 A. Aruna Jyothi examined the above items and also PW12 effected te medical examination of the accused for potency.
Having collected the relevant documets and on completion of entire investigation, PW.12 filed the charge sheet against the accused for the alleged offence.
3. Cognizance of the case was taken for the offence under section
Under section 376 IPC and Sec. 4 of the Protection of Children from Sexual
Offences Act, 2012 against the accused. On appearance of the accused the copies of the case were furnished to accused under Section 207 Cr.P.C and upon hearing both sides, charges under Sections 376 of IPC and Section 4 of the
Protection of Children from Sexual Offences Act, 2012 were framed, read over and explained to the accused, who denied the offences and pleaded not guilty and claimed to be tried.
4During the course of trial, the prosecution examined PWs 1 to 12
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and got marked Exs.P1 to P10 and also exhibited MOs 1 to 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C by explaining incriminating material appears against the accused from the prosecution evidence and the accused denied the same and reported no evidence.
5I have heard the learned Additional Public Prosecutor and the learned defence counsel and I have perused the written submissions and citations filed by both parties.
6The learned Additional Public prosecutor submitted that the prosecution successfully proved the case against the accused and the evidence of the victim inspires the confidence and there is consistency in the evidence of the victim and her evidence is corroborated with material particulars and the defect in the investigation if any, need not be considered if the case of the prosecution is proved otherwise and minor contradictions and omissions, if any, no way affect the prosecution case and to that extent, relied on the following citations:
1. 1996 Law suit (SC) 115between State of Punjab Vs.Gurmit Singh.
2. 2015(1) ALT (Crl.) 431 SC. Between Vinod Kumar vs. State of Haryana.
3. 2012 (1) ALT (Crl.) 221 SC between State of UP Vs.Naresh and others.
7.Whereas the learned counsel for the accused submitted that, it is a false case and fabricated with the documents and he invited the attention of this court to the evidence of PW.1 and also submitted that nobody has seen the victim at 7.00 p.m on the alleged date of incident at the house of the accused and the version of PW.1 and PW.2 are doubtful and the case is foisted against the accused due to financial disputes between the father of the victim and the accused and pointed out the variations in the timings from one witness to the
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other witness. He further submitted that PW.1 has created propaganda about the alleged incident and there is a variation in Ex.P.1 report about the date and it is doubtful. There is no consistency in the version of the victim i.e. before the
Police Officer, before the Magistrate and before this court and the victim improved her version time to time. Hence, her evidence cannot be considered.
It is the defence of the accused that the father of the victim sought financial assistance from the accused and when the accused denied the same, this case has been falsely lodged against the accused and also projected discrepancies in the school timings of the victim and also alleged that there is improper investigation and challenged the Ex.P.7 document on the ground that PW.6 has no locus standi and that Ex.P.7 is invalid in the eye of Law and no offence took place and the isolated sentence of the accused in his 313 Cr.P.C examination cannot be considered against him and the FSL report is also not supporting the prosecution case. Hence, prayed for acquittal by relying on the following rulings :
1.2016 LawSuit (MP) 341, between Guddu Baiga @ Shivdayal Vs. State of Madhya Pradesh.
2.2014 LawSuit (SC) 335, between Nishu Vs. Commissioner of Police, Delhi & Ors.
8.At this stage in consideration of the facts, matter reopened and charges were amended and again heard both sides in view of the amended charges and both stood for the earlier arguments.
9.Now the points for determination are :
1.“Whether the prosecution has been able to bring home the guilt against the accused for the offences under Section 6 r/w 5(m) of the Protection of Children from Sexual Offences Act 2012 and under Section 376(2)(i) of IPC beyond all reasonable doubt ?”
2.To what relief ?
10.POINT No.1 :-
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The case of the prosecution is that the victim has been residing with her parents at Door No.35, Andalamma Basthi, Nampally, Hyderabad, for the past eight months. Accused was also residing at D.No.30 of the same locality and the victim was having the habit of going to the house of the accused for watching TV, listening to music and playing with the sister of the accused. On 28-02-2014 at about 8.00 p.m. the victim was playing in front of her house, then the accused called her to his house and thereafter he committed the alleged offences against the victim.
11.To substantiate the same the prosecution examined PWs 1 to 12 and got marked Exs.P1 to P10 and exhibited MOs 1 to 5. PW1 is the mother of the victim. PW2 is the victim. PWs 3, 4 and 10 are the independent witnesses.
PW5 is the panch for confessional statement of the victim. PW6 is the doctor who examined the victim. PW7 is another doctor who determined the age of the victim. PW8 is the Police Officer who registered the case. PW9 is the Woman
Police Officer who recorded the statement of the victim. PW11 is the doctor who conducted medical examination of the accused for potency. PW12 is the
Investigating Officer in this case.
Ex.P1 is the report lodged by PW1. Ex.P2 is the admissible portion of the confessional statement of the accused. Ex.P3 is the scene of offence-cum- seizure panchanama. Ex.P4 is the rough sketch of the scene. Ex.P5 is the
Preliminary Report. Ex.P6 is the FSL Report. Ex.P7 is the Final Report. Ex.P8 is the Age Determination Certificate. Ex.P9 is the FIR. Ex.P10 is the Potency Test
Report.
MO.1 is green and black color top. MO.2 is green and black color pant. MO.3 is blue color shirt of “Clavin Klein Jeans”. MO.4 is blue color Jeans pant with label “Out lander”. MO.5 is one white color flexi. (X National Youth
Festival).
12.The brief facts of the prosecution case are necessary for better
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understanding of the case and the same are produced from the prosecution evidence as follows :
PW1deposed that she is the resident of Nampally, Hyderabad.
Victim is her daughter. LW-3 Zaheer Ahmed Ansari is her husband. She knows
LW-4 Fathima Begum, LW-5 M. Vijayamma, LW-6 V.Laxmi, LW-7 J.Babu, LW-8
N.Andalamma, LW-9 K.Shiv Raj. She knows the accused who is the resident of two houses from her house. She was blessed with three children. They are the victim, Afreen Begum and Sohal Ansari. Victim is her second daughter. She was working in a hotel at Abids. Her working timings were from 3-00 pm to 9-00 pm.
Her husband is a cook and working in the function houses. They came from
Bombay in the year 2013 and had been staying in Andalamma Basthi, Nampally,
Hyderabad since then. Victim and PW1's son Sohal Ansari were going to school and return at 4-00 p.m. during the year 2013. At about 4-00 pm both of them used to go to tuition and used to return to the house at 7-00 pm. On 28-02- 2014 as usual victim and PW1's son Sohal Ansari went to the tuition and returned to the house at 7-00 pm. she informed to her elder daughter to take care of the children and serve food to them. She along with her husband went to market and returned at about 9-00 pm and found victim daughter went missing from the house. They searched for the victim in and around their locality. Then one Pullamma who is the maternal aunt of the accused informed them that she saw the victim in the house of accused watching television. She along with other locality people went to the house of accused and knocked the door of the accused but, the accused did not open the door. Then she started searching for her daughter around Nampally station and she went to the out post of Nampally and informed to the police people present there and they also searched along with them. They returned to their house. At about 1.00 a.m in the midnight the accused came to their house and asked her husband for a beedi. Then her husband offered him a beedi. She enquired with the accused about her missing daughter. Then he informed her that her victim daughter was sleeping in his house and asked her not to disclose the same to anybody. Herself
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and her husband went to the house of accused and woke up the victim and brought her to their house. Then she enquired with the victim as to what happened to her. Victim informed that the accused had removed her clothes and also removed his clothes and the accused laid on her. She went and informed to the locality people. Then the accused fled away. They searched for the accused but they could not trace him. On the next day they lodged the report orally
before the police at around 6.00 a.m. Police recorded her statement and read
over the contents and obtained her thumb impression. Ex.P1 is the report dated:
01-03-2014. She identified the clothes of the victim seized by the police. MO-1 is green and black colour top. MO-2 is green and black colour pant. Victim was sent to the hospital for medical examination.
13.PW.2, the victim deposed thatpresently she is residing at
Borabanda along with her parents. PW-1 is her mother. LW-3 Zaher Ahmed
Ansari is her father. She knows the accused who is also resident of their locality.
In the year 2013 they came from Bombay and had been staying at Andalamma basthi. On 28-02-2014 she came from her school at about 4-00 pm and immediately after reaching home again she went to tuition and returned to her house at 7-00 pm. Her parents left for market. While they were playing outside their house , accused called her for watching T.V. She went to the house of accused and some other children were also watching T.V. After some time the other children left for their houses. The accused was alone in the house by the time she was watching T.V. The accused closed the doors and also switched off the lights. Then he removed her clothes and clothes of the accused and she was asked to sleep and the accused laid on her. At about 1.00 a.m some people came and knocked the door and the accused closed her mouth and asked her not to open the door. Thereafter while she was sleeping, her father came to the house of the accused and woke up her and brought to their house. Her parents enquired with her and she disclosed the incident to them. The locality people also enquired the incident and the accused fled away from that place. On the
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next day morning at about 6-00 am she went to the police station along with
PW-1. She was sent to the hospital for medical examination and doctor examined her. At that time doctor collected her clothes. She identified her cloths under MO1 and MO2. She was also sent for her age determination. She was examined by the police.
14.PW.3 deposed thatsheis the resident of Nampally, Hyderabad and working as maid servant. She knew PW-1 and PW-2 who used to reside in their basthi. She knew the accused who is residing in their locality. On 28-02-2014
PW-1 came to her and informed that PW-2 went missing and she was searching for PW-2. Then they searched for PW-2 by knocking the doors of surrounding people making enquires about PW-2. At about 1-00 am in the midnight she came to know that PW-2 was dropped by the accused at the residence of PW-1.
15.PW.4 depsoed thatheis the resident of Andalamma basthi,
Nampally, Hyderabad and working as a Car Driver. He does not know about PWs 1 and 2, but they came to their locality recently before the incident. He knows the accused who is resident of their basthi. He is working as a driver and he is not residing in that particular area, but on the date of incident he went to that area as his house was being repaired and he went to the house of the accused and requested the accused to switch on the T.V for watching Cricket match, the accused who was alone in the house did not switch on the T.V. Hence. he left the place. He does not know anything happened subsequently.
16.PW.5 deposed that he is the resident of Andalamma Basthi,
Hyderabad. He is a daily wage earner. On 01-03-2014 at 4-30 pm police called him to the police station. By that time the accused was in the custody of police and the police interrogated him and recorded his confessional statement in their presence and the accused confessed the guilt and the police seized the clothes of the accused in their presence and the accused led them to his house at
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Andalamma basthi and the accused shown the place of offence and at the instance of the accused the police seized one blanket and one flexi banner and police also drafted the confessional statement in the police station and obtained his thumb impression and subsequently also drafted scene of offence-cum- seizure panchanama and also drawn rough sketch at the scene of offence which is the house of accused in their presence and obtained his thumb impression.
17.PW.6 deposed thatshe has been practicing as a private doctor.
Previously she worked as Civil Assistant Surgeon in Nilopher Hospital from 2007 to 2014. On 01-03-2014 she received a requisition from Inspector of Police to examine the victim alleged to have been raped by a known person on 28-02-2014 at his residence at around 11-00 pm. Accordingly she examined the victim in the presence of her parents and Women Constable 8991 of PS Nampally and on her physical examination, the victim was mentally stable and on the local examination, she found the hymen was not intact, admitting one finger easily and it is very painful and she was not able to pass urine and just before examination, she wanted to pass urine and it became very painful to her. She collected the clothes of the victim I.e. green colour polyster pyjama and green colour polyster Kurta and she also collected swabs from the vagina and also nails and hair clippings. She handed over the same to the police who accompanied the victim girl for FSL examination. Subsequently FSL Report has been received and basing on the FSL report, she gave a final report as it shows that human semen and spermatozoa are detected on item No.5 which is green colour polyster pyjama. With the help of the clinical findings and FSL Report she opined that rape might have occurred.
18.PW.7 deposed thatshe has been working as Associate Professor in
Osmania Medical College, Hyderabad. On 03-03-2014 she received a requisition from SHO Nampally to determine the age of the victim girl. Accordingly she conducted General and Physically examination, specifically Dental and
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Radiological examination and she is of the opinion that the victim girl was aged about eight years.
19.PW.8 deposed thathe has been working as SI of Police, PS
Nampally, since 15-07-2013. On 01.03.2014 while he was in the Police Station
PW1 came to the police station and orally reported the case and he reduced the same into writing and obtained her thumb impression on Ex.P1 and registered the same as a case in Crime No.60/2014 under Section 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act 2012 and issued the FIR under Ex.P9. He sent the original FIR to the concerned Court and marked the copies as per procedure. In the Ex.P1 by over site he mentioned the date as 28.02.2014 instead of 01.03.2014.
20. PW.9 deposed that she received a requisition from SHO Nampally to record the statement of victim on 01-03-2014. Accordingly she recorded the statement of victim in the police station Nampally in the presence of PW1 and handed over the recorded statement to the Inspector of Police K. Madhu Mohan
Reddy.
21.PW.10 deposed that she is the resident of Karmanghat, Hyderabad.
Previously she used to reside in Andalamma Basthi, Nampally, Hyderabad. She knew PW.1, PW.2, LW.3 Zaheer Ahmed Ansari, PW.3, LW.6 V. Lakshmi, PW.4,
LW.8 N. Andallamma, LW.9 K. Shivraj. She knew the accused. On 28.02.2014 at about 09.00 or 09.30 pm PW.1 came to her house and enquired whether her daughter PW.2 had come to her house. Then she replied that the victim PW2 had not visited her house and PW.1 searched for her daughter in other houses of their basthi. Thereafter, PW.1 knocked the door of the accused. But, the accused did not open the door and later she went to her house for sleep. At about 01.00 or 01.30 am in the mid night PW.1 again came to her house and informed her that the victim girl was traced out. On the same day she observed
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the victim girl along with PW.1.
22.PW.11 deposed that he received a requisition from Superintendent of Prisons, Chanchalguda, Hyderabad to conduct potency test examination on
G. Prashanth on 21.03.2014. The accused was brought by the HC 8869 and PC 8860 of PS Nampally and accordingly, he examined the accused physically and opined that there is nothing to suggest that the accused is not capable of performing the act of sexual intercourse.
23.PW.12 deposed thathe has been working as Inspector of Police in
Nampally PS since 24-2-2014. He received case file from PW-8 to conduct investigation in this case. He examined PW-1, LW-3 Zaheer Ahmed Ansari and recorded their statements. He addressed a letter to PW-9 to record the statement of PW-2. Accordingly PW-9 recorded the statement of the victim PW-
2. Further he sent the victim girl for medical examination and age determination under the Escort of LW-12 CH.Malathi and her parents. Later he visited the spot and examined PW-10, PW-3 and recorded their statements. As the house of the accused was locked at that time, hence he could not conduct scene of offence panchanama at that movement. Later on 01-03-2014 i.e. on the same day at about 4-00 p.m LW 14. Mohd Khaiser Khan and LW-15 Sandeep Kumar apprehended the accused and brought before him. Then he interrogated the accused and got recorded the confessional statement of the accused in the presence of LW-10 Mohd Alam and PW-5 after securing their presence. At the instance of accused he seized clothes of the accused. In pursuance of the confession of the accused and at the instance of accused who led them to his house at Adallama Basthi at Door No.30, the accused opened the lock of the door and again he conducted scene of offence panchanama in the presence of
PW-5 and LW-10 Mohd Alam and seized one blanket and flexi. Later he affected the arrest of accused and produced him before the concerned court for Judicial custody. He got conducted the potency test of the accused with the assistance of PW-11. Again on 02-03-2014 he visited the spot and examined LW-6 V.
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Laxmi, PW-4, LW-8 Narva Adallamma and LW-9 K.Shiva Raj and recorded their statements. After completion of entire investigation and after collections of the necessary documents, he filed the charge sheet.
24.PW.1 admitted that she went to the police station along with her husband. Herself, her husband and other basti people went to the house of accused on the date of Incident. She denied the suggestion that the clothes were planted and those were collected by the police from her house. She adds that the clothes were collected by the police at the hospital wherein the victim was examined. At this stage, it is appropriate to mention the fact that PW.6 who is the Doctor, examined the victim deposed that she collected the clothes of the victim. Hence, the suggestion is collapsed and PW.6 evidence corroborates the version of PW.1 about the collection of victim clothes. PW.1 also denied the suggestion that she never resided in Andalamma basthi and also denied the suggestion that when the accused refused to assist them financially, they foisted a false case against the accused. PW.3 is an independent witness who deposed that PW.1, PW.2 are residents of their basti. PW.4, PW.10 also deposed that
PW.1, PW.2 are the basti people which supports the prosecution case and except the suggestion that there is no evidence to show that PW.1, PW.2 are not the residents of Andalamma basti. Therefore, it is established that both PW.1, PW.2 are residents of Andalamma basti. PW.1 also deposed that she knows the mother of accused and does not know the father of the accused.
25.During the cross-examination of PW.2, it is elicited that herself along with her friends used to go to the house of accused for watching T.V.
programs. Infact this answer supports the prosecution case that the victim went to the house of accused to watch T.V. program. Surprisingly, a suggestion is put to the victim that on the date of incident, she went to the house of accused and slept then her parents came and took her on the next day and no sexual assault took place against her by the accused but the same is denied by the
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victim and she denied the suggestion that she deposed false and she was tutored, which strengthen the victim presence at the house of the accused.
26.In the cross-examination of PW.3, PW.4 and PW.5 nothing is elicited in support of the defence.
27.During the cross-examination of PW.6, she was cross-examined about the validity of Ex.P7 and she denied the suggestion that sexual intercourse on the victim at that stage cannot be possible and nothing is elicited contrary to the evidence of PW.6. The evidence of PW7 is in respect of Ex.P8 Age Certificate.
It is opt to mention here that the age of the victim is undisputed.
28.Basing on the above material evidence, it is established that PW.2 went missing on 28-02-2014 from her house. PW.1, LW.3 Zehr Ahmed Ansari, who are parents of the victim and searched for her. PW.3 corroborated the same fact in her chief-examination that she come to know the Incident. Then they searched for PW.2 by knocking the doors of surrounding people and making enquiries about PW.2 and at about 1.00 a.m. she came to know that PW.2 was dropped by the accused at the residence of PW.1. The same piece of evidence supports the version of PW1 and PW2. PW.2 also deposed that she had heard the knocking the doors of the accused and the accused closed her mouth not to make noice. PW.4 deposed about the presence of accused at his house on the date of incident. During the 313 examination of the accused also, the accused admitted that the victim come to his house. PW.10 who is an independent witness supported the same and knocking the doors of accused which clearly supports the theory of prosecution.
29.Now coming to the documentary evidence available on record and more particularly incriminating against the accused are Ex.P1, Ex.P2, Ex.P5,
Ex.P6, Ex.P7. Ex.P1 is the statement of PW.1 and the evidence of PW1
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corroborates the contents of Ex.P1. No doubt that the date on Ex.P1 is mentioned as 28-02-2014. At this stage the learned counsel for the accused submitted that it is a fabricated document and antidated to the incident. But
PW.8 who is the author of Ex.P1 gave a clear and plausible explanation and it is acceptable. Ex.P2 is the confessional statement of the accused leading to the recovery of Mos 3 and 4 objects and also leading to the scene of offence which is under his control and Ex.P4 document clearly supports the theory of PW.12 that earlier the house of the accused was locked and the accused opened the same in the presence of PW.8 along with other panch witness and PW.12.
30.The learned counsel for the accused vehemently argued about the variance in theory of prosecution witnesses and also timings of school of PW.2.
At this stage, the learned Additional Public Prosecutor relied on (1) Vinod
Kumar Vs. State of Haryana case and (2) State of U.P. Vs. Naresh and
Others. No doubt, the variances in timings are no way helpful to the defence and moreover, those are only normal timings during that night and does not affect the prosecution case.
31.The learned counsel for the accused also submitted that PW.6 is not competent to depose in this case and Ex.P7 is not valid in the eye of Law.
Admittedly, Ex.P7 is issued on 16-08-2016. Prior to that Ex.P5 document was there and Ex.P6 FSL Report is based on Ex.P5 Preliminary Report to that extent.
PW.6 in her cross-examination deposed that she resigned from service and started practicing as a Private Doctor and on the requisition of police and after receipt of FSL Report, she issued Ex.P7 Report. It is crystal clear that she issued
Ex.P7 only of relieving from services and by that time of examination, she was in service. Hence, she is competent and Ex.P7 is valid in the eye of Law after consideration of her explanation and it is not the case of the accused that it is fabricated document.
Fair Judgment in SCPCS No. 36/2015 17 Dated: 15-02-2017.
32.Now coming to the FSL Report under Ex.P6 which clearly proves that item No. 5 which is polyster pyjama of the victim containing human semen and spermatozoa which suggests the theory of victim and on the next day the clothes were collected from the victim who alleged that accused removed her clothes, his clothes and laid on her and Ex.P10 suggests that the accused as potent.
33.PW.6 deposed that on her examination, she found that Hyman was not intact admitting one finger easily and it is very painful to the victim and she was not able to pass urine. To that evidence of PW.6, victim also deposed in her chief examination that the accused removed his clothes and her clothes and laid on her which clearly suggests that ejaculation of sperm on the clothes of the victim as per the evidence of PW6 and it supports the theory of the victim about rape on her by the accused. Therefore, the version of victim has been supported by medical evidence and it is proved that on 28-02-2014 the accused was in his house and PW.2 went to his house and the accused committed the rape on her.
The evidence of PW.3, PW.4 and PW.10 supports the version of PW.1 on material particulars. PW.1 searched for PW.2 and the same is established with the corroborative evidence of PW.3, PW.4 and PW.10. The FSL Report under Ex.P6 is also supports the prosecution case. The defence challenged on various inconsistencies of prosecution evidence is totally failed and the suggestion that the false case is foisted only when the accused failed to provide financial assistance to the father of the victim leading to filing of the false case is also failed and baseless and there is no evidence to that extent. The version of the victim inspires the confidence and corroborates on material particulars with the evidence of PW1, PW3, PW4 and PW10 along with the medical evidence. It is also undisputed that the victim is aged about 8 years by the time of the incident and Ex.P8 also supports the same. The ruling in GudduBaiga Vs. Shivdayal case it is held that the victim has given consent and the victim turned hostile and did not support the prosecution case. But, in this case there is no consent and victim
Fair Judgment in SCPCS No. 36/2015 18 Dated: 15-02-2017.
supported the prosecution case. Hence, the ruling is no way helpful to the prosecution case and the another ruling in Nishu case it is a gang rape and the
Hon'ble Supreme Court did not interfere as the case went for trial and it is also
no way helpful to the defence and the written arguments projected vague submissions and not supported with any facts and there is no force in the written submissions.
34.It is settled principle of Law that the court must see the interest of the victim girl about the outcome of the prosecution case before relying on her evidence. There are no reasons to discredit the version of the victim girl. The reasons suggested are baseless, inconsistent and without any proof and moreover, there is no evidence for ill-motive on the part of the victim and the mother of the victim i.e., PW.2 and PW.1 respectively to lodge a false case against the accused. The version of the victim is supported with the evidence of other witnesses on all material aspects.
35.The oral testimony of prosecutrix found cogent, reliable, convincing and trustworthy and supported with the corroboration of the other material witnesses on material particulars of the prosecution case. There is no material to substantiate the defence of enemity between the family members of the prosecutrix and with the accused. Accused fled away from the scene of occurrence. Semen and spermatozoa were found on the clothes of the victim.
The evidence of PW.5 supports and assures with the evidence of PW.12 that the accused left the house and opened the same in the presence of LW.10 Mohd.
Alam and PW.5 which corroborates the version of PW.1 about the case of defence and presence of accused established through PW.4 who stated to have been to the house of the accused for watching T.V. on the date of the incident.
PW.12 stated that he went to the spot and recorded the statement of PW.10,
PW.3 and observed the locking of the door of the house of the accused at that time. As such, he could not conduct scene of offence panchanama. The Doctor,
Fair Judgment in SCPCS No. 36/2015 19 Dated: 15-02-2017.
PW.6 examined the victim on 01-03-2014 at 6.30 p.m and collected the incriminating material from the victim for analysis and to get the FSL Report under Ex.P6 which also supports the prosecution case on material aspects.
36.Basing on the above observations and discussions, it is found that the accused committed the rape on the victim girl (PW.2) and the prosecution successfully proved the charges against the accused beyond reasonable doubt and the defence projected by the accused toally failed and as per Section 29 of the Protection of Children from Sexual Offences Act, 2012, the court shall presume that the person has committed the offence unless contrary is proved and Section 30 of the same Act provides a presumption for mental state of the accused. Keeping the victim girl in his house, locking the doors, switched off the lights proved the mental state of the accused. And there is no contrary evidence from the accused side and the accused totally failed to discharge the onus on him. Hence, it is the considered opinion of this court that in consideration of the version of the victim, the evidence of PW.6 read with Exs.P5, P6 and P7, it is established that the charged offences are proved against the accused beyond reasonable doubt. And the prosecution successfully established the charges against the accused for the offence under Section 376 (2)(i) of IPC and Section 6 r/w 5(m) of the Protection of Children from Sexual Offences Act, 2012 and the accused is liable for conviction for the said offence. Accordingly, this point is answered.
37.POINT NO.2 :-
In the result, the accused is found guilty for the offence under
Section 6 r/w 5(m) of the Protection of Children from Sexual Offences Act, 2012 and Section 376(2)(i) of IPC and the accused is convicted under Section 235(2)
Cr.P.C for the offence under Section 6 r/w 5(m) of the Protection of Children from Sexual Offences Act, 2012 and Section 376(2)(i) of IPC. The Mos 1 to 5
Fair Judgment in SCPCS No. 36/2015 20 Dated: 15-02-2017.
shall be destructed after appeal time is over.
Directly typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court, on this the 15th day of February, 2017.
I ADDL.METROPOLITAN SESSIONS JUDGE-
CUM- SPECIAL JUDGE FOR TRIAL OF OFFENCE
UNDER PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT, HYDERABAD.
38.Heard the Accused on the quantum of sentence to be imposed on him, wherein the accused pleaded mercy of the court and prayed this court to take lenient view in imposing the sentence.
39.Basing on the facts and circusmtances of this case, accused is not entitle for any benefits under Section 360 of Cr.P.C and also under Sections 3 and 4 of The Probation of Offenders Act as he committed grave offence against a child who is under eight years. However, considering the age and antecedents of accused, a lenient view is taken in imposing the sentence.
40.In the result, accused is found guilty for the offence punishable
Section 6 r/w 5(m) of the Protection of Children from Sexual Offences Act, 2012 and the accused is convicted under Section 235(2) Cr.P.C and sentenced to undergo Rigorous Imprisonment for a period of ten years and also imposed a fine of Rs.1,000/- and in default to undergo simple imprisonment for two months for the offence under Section 6 r/w 5(m) of the Protection of Children from
Sexual Offences Act, 2012.. Further, the accused is found guilty for the offence punishable under Section 376(2)(i) of IPC and convicted under Section 235(2)
Cr.P.C and sentenced to undergo Rigorous Imprisonment for a period of ten years and also imposed a fine of Rs.1,000/- and in default to undergo simple imprisonment for two months for the offence under Section 376(2)(i) of IPC.
Fair Judgment in SCPCS No. 36/2015 21 Dated: 15-02-2017.
41.Both the sentences imposed against the accused shall run concurrently and the accused is entitled for set off of the remand period, if any, undergone by him during the pendency of the case under Section 428 Cr.P.C.
Directly typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court, on this the 15th day of February, 2017.
I ADDL.METROPOLITAN SESSIONS JUDGE
CUM SPECIAL JUDGE FOR TRIAL OF OFFENCE
UNDER PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT, HYDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR PROSECUTION: PW.1 Shabana Begum PW.2 Victim (victim name not disclosed) PW.3 Methiri Vijayamma PW.4 Jilla Babu PW.5 V. Manikyam PW.6 Dr.T.Padmaja PW.7 Dr.M.Sugatha PW.8D. Nippun PW.9P. Janakamma PW.10Fathima Begum PW.11Dr.K.Laxman PW.12 K. Madhu Mohan Reddy
WITNESSES EXAMINED FOR DEFENCE: None
EXHIBITS MARKED
FOR PROSECUTION: Ex.P.1 Report Ex.P.2 Admissible portion of confession statement cum seizure panchanama of accused Ex.P.3 Scene of offence cum seizure panchanama Ex.P.4 Rought sketch Ex.P5Preliminary report Ex.P6FSL report Ex.P7Final opinion Ex.P8Age certificate Ex.P9FIR Ex.P10Potency report
FOR DEFENCE:Nil.
MATERIAL OBJECTS MARKED: MO.1Green and black colour top MO.2Green and black colour pant MO.3Blue colour shirt MO.4Blue colour jeans MO.5white colour flexi
I ADDL.METROPOLITAN SESSIONS JUDGE
CUM SPECIAL JUDGE FOR TRIAL OF OFFENCE
UNDER PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, HYDERABAD