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IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE,
KARIMNAGAR
PRESENT:SRI G. SREENIVASULU, I Additional Sessions Judge,
K A R I M N A G A R.
Monday, the 15th day of October, 2018
SESSIONS CASE NO. 27 OF 2016
Name of the complainantThe state through Circle Inspector of Police, Sulthanabad P.S. Sulthanabad (Crime No. 85 of 2015 Sulthanabad P.S.) Name of the accusedPenukula Sadaiah @ Sadi, S/o Kanukaiah, aged 38 Yrs, Boya, r/o Lalapalli village of Eliagaidu Mandal, Karimnagar district ChargesUnder Section 376 (2) (l) of IPC, Section 6 of POCSO Act
Plea of the accusedNot guilty Finding of the CourtGuilty Sentence or orderIn the result, the accused is sentencedtosufferRigorous
Imprisonment for (10) years and also to pay a fine of Rs. 10,000/-, in default to pay the fine amount he shall suffer
Simple Imprisonment for (6) months for the offence under section 376 (2) (l) of
IPC. The fine amount that was realized the same shall be paid to the victim under section 357 (3) of Cr.P.C since the victim is mentally challenged, the same shall pay to her natural mother cum guardian namely the PW-1 after appeal time is over. The remand period if any during the trial or enquiry shall have to be given set off under section 428 of
Cr.P.C. M.O.1 and M.O.2 shall be destroyed after appeal time is over.
Prosecution conducted bySri M. Surender,
Additional Public Prosecutor
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Accused defended bySri T. Pranab Kumar, Advocate
This case coming on before me on 27-09-2018 for final hearing in the presence of Sri M. Surender, Additional Public Prosecutor for the state and
Sri T. Pranab Kumar, Advocate for the accused, having been heard and stood over for consideration to this day, the Court made the following:
J U D G M E N T
1.The Inspector of Police, Sulthanabad of P.S., has filed the Charge
Sheet against accused for the offence under Sections 376 (2) (l) of IPC and
Section 6 of POCSO Act.
2.The brief averments of the Charge Sheet are as follows:
On 04-08-2015 at about 10:00 Am the complainant B. Swaroopa wife of the Pochamallu resident of Lalapally of Eligaid mandal came to police station and presented a report alleging that she was blessed with 2 daughters, her younger daughter aged about 17 years who is suffering with mentally challenged girl and she is also dumb and deaf. She staying at home. On 03-08-2015 the complainant went to coolie works by keeping her husband and also her elder daughter at home to take care of the victim and she returned home at 06:30 Pm, found the victim was sitting near to the house of Buchi Mallamma who is her neighbour in front of her house. Then the complainant went inside the house and attended routine works, at about 07:00 Pm she came out of the house to take her daughter to home, found that her daughter is not find at the house of Buchi Mallamma, then she went to the house of Mallamma to enquire about her daughter she found
Mallamma was preparing food. Then she searched for her daughter. At about 07:00 Pm or so she found the victim was coming out from the house of one
P. Sadaiah without blouse then she went and brought her daughter found 3 scratch injuries on the chest and backside of her body and hayrick pieces were found in her tuft. She came to know through sings that P. Sadaiah had committed sexual assault on the victim in the hayrick yard taken advantage of her mental and physical disability.
3.The complainant gave report to the police and LW-20 MD. Rafiq Khan,
Sub-Inspector of Police, Julapally Police Station registered a case in Cr.No. 85 of 2015 under section 376 (2) (l) IPC, Section 6 of POCSO Act and submitted copies of F.I.R to all concerned officers including to his Inspector.
Having received the copy of F.I.R., LW-21 T. Srinivas Rao, Circle
Inspector of Police, Sulthanabad took up investigation into the matter and he examined the complainant and recorded her statement and he tried to examine the victim with the help of women head constable Bhagya Laxmi but victim is not in a position to state anything. Then the victim was referred to Government Hospital, Karimnagar for examination and report. The lady doctor LW-15 B. Rathnamala examined the victim preserved vaginal swabs, wash for onward transmission to R.F.S.L., Karimnagar.
The Circle Inspector of Police, Sulthanabad LW-21 T. Srinivas Rao examined and recorded the statements of LW-3 to LW-7 B. Pochamallu, B.
Sandhya, B. Mallamma, M. Mallaiah, M. Shankaramma at the scene of offence and he also secured the presence of LW-8 E. Malla Reddy and LW-9 P.
Rajesham as mediators observed the scene prepared the crime detail form and drawn rough sketch.
LW-21 T. Srinivas Rao, Circle Inspector of Police, Sulthanabad sent requisition to the Principal, Dumb and Deaf School, Karimnagar to depute 4 one of the female teacher to assist the investigation officer to record her statement, accordingly, LW-13 Gantela Komala Udaya Kumari is deputed to assist the Inspector to examine the victim and with the help of teacher and women head constable tried to record the statement of victim but could not record the statement as victim is not in a position to understand the signs and to give any rational answers.
The Circle Inspector of Police, Sulthanabad requested the Principal of
Government School for Karimnagar District Freedom Fighters Trust School cum Vocational Training Center for mentally retarded, Karimnagar to issue date of birth certificate of victim LW-2 B. Komalatha where she was admitted in school and the school principal issued the date of birth certificate.
According to the school record she was born on 26-11-1999. LW-21 T.
Srinivas Rao, C.I of Police, Sulthanabad also requested the Medical Officer,
Government Hospital, Karimnagar to issue the certificate of victim with regard to her mental condition. Later LW-16 Dr. Pusuthotham examined the victim referred her to Mental Care Hospital, Hyderabad and to submit the report. The doctors at mental care hospital examined the victim found that the victim is having I.Q of 30 with mental retardation and disability of 90%.
4.On 10-08-2015 at 1530 hours, LW-21 T. Srinivas Rao, C.I of Police,
Sulthanabad received the credible information visited his house found that the accused is at home and apprehended. Interrogated the accused in the presence of LW-10 V. Venkat Rao and LW-11 A. Punnamaiah and accused voluntarily confessed that he has committed the offence and also produced blouse of the victim and his underwear. The confessional statement of accused has been reduced into writing in the presence of mediators and seized the articles under the cover of panchanama. Then the accused was 5 referred to Government Hospital, Sulthanabad for potency test. On examination medical certificate is issued.
Subsequently, the accused was arrested on following the procedure sent him to the court for judicial custody. The material objects were forwarded to R.F.S.L., Karimnagar for analysis, subsequently, produced the
R.F.S.L., Report before the lady medical officers and obtained final opinion.
On completion of investigation filed charge sheet before the court.
5.On perusal of the record, the case was taken on file by my predecessor in office for the offence under section 376 (2) (l) of IPC, Section 6 of POCSO Act.
6.Summons were issued to the accused, on appearance of accused, copies of documents were furnished as required under Section 208 of Cr.P.C., examined him under Section 228 of Cr.P.C., explained the accusations made against him for the offence under Section 376 (2) (l) of
IPC, Section 6 of POCSO Act. Accused denied the allegations made against him. On hearing, charges for the offence under Section 376 (2) (l) of IPC,
Section 6 of POCSO Act against Accused were framed and explained in his vernacular language. Accused pleaded not guilty and claimed to be tried.
7.During the trial, the prosecution has examined Pws.1 to 14 and got marked Ex.P.1 to P.15 documents. M.O.1 and M.O.2 were marked.
8.After closure of the prosecution evidence, accused was examined under Section 313 of Cr.P.C., explained the incriminating material in the evidence of Prosecution Witnesses, to which he denied the same and reported that he is having defence evidence. When the matter is posted for 6 defence evidence, the accused filed a memo stating that he has no defence evidence. Hence, the defence evidence is closed, posted for arguments.
9.Heard the arguments on both sides. Perused the record.
10.Now the point for consideration is:
Whether the prosecution has proved the guilt of accused for the offence under Section 376 (2) (l) of IPC, Section 6 of POCSO Act beyond all reasonable doubt ?
11.P O I N T:-
According to the case of the prosecution the victim is a mentally retarded women and she remained at home and her mother is attending coolie works and she kept her husband to guard the victim. The victim used to sit in front of the house of one Buchi Mallamma, whose house is situated near to the house of the victim. While so on 03-08-2015 PW-1 who is the mother of victim went on coolie works by keeping her husband at home, at about 06:30 Pm or so PW-1 returned to home and saw her daughter sitting in front of the house of Buchi Mallamma then PW-1 went inside her house and attended domestic works at about 07:00 Pm or so she came out of the house with intent to take her daughter to her house she found that the victim is not find place at the house of Buchi Mallamma then she made an enquiry with
Mallamma by then Mallamma was preparing food then she searched for her daughter in the near by houses.
At about 07:00 Pm or so PW-1 observed that the victim was coming from the backside of the house of the accused. There is no blouse on her person and also observed small scratch injuries on the backside of her chest and hayrick pieces were found on her tuft. PW-1 who is the mother of the victim had acquainted with the signs of her daughter came to know that the 7 victim was ravished by the P. Sadaiah. Since the victim was coming out from the backside of the house of the accused she suspected that accused is responsible for the incident. Since it is night then she went to Julapally police station on the following day at 10:00 Am and lodged a report with the police.
The police promptly registered the case under section 376 (2) (l) of IPC,
Section 6 of POCSO Act.
12.To substantiate the contention of the prosecution, prosecution has examined PW-1 to PW-14. PW-1 is none other than the mother of the victim.
She deposed before the court that the victim is her daughters and she is suffering with mental retarded women aged about 16 years by the date of incident. Once she was admitted in Freedom Fighters Trust School cum
Vocational Training Center for Mentally Retarded People at Karimnagar. They gave date of birth certificate of the victim it shows that the victim was aged about 16 years by the date of the incident.
On 03-08-2015 at about 07:00 Pm the victim was not find place at the house of one Buchi Mallamma then PW-1 searched for her daughter and she could not find her, at about 07:00 Pm or so PW-1 found that her daughter/victim is coming from backside of the house of the accused without blouse and injuries on her backside of the chest and split marks on her breast. On coming to know the incident she informed the incident to her neighbour PW-4 and to her husband later both PW-4 and her husband came to PW-1 and saw the victim who is having no blouse on her person and split marks. Later PW-1 gave report to the police. PW-2 is the Post Graduate teacher for dumb and deaf working at Karimnagar for the last 20 years. On the requisition made by the Inspector of Police she went to the house of the victim tried to talk with her by way of signs inspite of her much persuasion 8 the victim is not in a position to respond to the signs of PW-2 as such no statement of victim was recorded. By the time PW-2 went to the house of the victim one Bhagya Laxmi, Women Head Constable was also present there to record the statement of victim. Since the victim is not responding to the signs of PW-2 as such no statement of victim was recorded.
13.PW-3 is the sister of the victim and elder daughter of PW-1 she spoke
before the court about the incident. Her evidence is almost all identical to
the evidence of PW-1 who is her mother with regard to the victim sat at the house of Buchi Mallamma at about 06:30 Pm when PW-1 saw her subsequently she is not find place then at 07:00 pm or so the victim was coming to her house from the house of accused without blouse and scratches on her back and hayrick pieces in her tuft and by signs the victim shown the accused is responsible for sexual ravish on her. PW-4 is one of the circumstantial witness she spoke before the court that nearly 3 years back at 07:00 Pm while PW-4 and her husband were watching the T.V., PW-1 came to her house and took her and her husband to her house and they saw that the victim has no blouse on her person and found split marks on her chest. She along with 10 others witnessed the same, accused is residing by the side of the house of PW-4 and she do not know anything about the present case.
PW-5 is the crime detail form mediator he spoke before the court that they observed the scene and prepared Ex P-2 crime detail form.
14.PW-6 and PW-7 are the crucial witnesses. PW-6 is working as Village
Revenue Officer of Eligaid village and PW-7 is the Panchayat Secretary of
Lalapally village. Both are government servants. The substance in their evidence is on 10-08-2015 on the instructions of M.R.O., PW-6 went to the house of the accused at 04:30 Pm found the accused in the custody of police 9 on the request of police PW-6 acted as a mediator. On being questioned to the accused the accused confessed that on 03-08-2015 at 06:30 Pm taken advantage of loneliness of the victim who is suffering with mentally challenged women took her to hayrick yard there he committed rape on her kept her blouse and drawer with him and he produced both articles from his house. The same was seized under the cover of Ex P-3 panchanama dated 10-08-2015 at 1645 hours. PW-7 is the Panchayat Secretary he spoke what
PW-6 deposed before the court with regard to questioning the accused and accused confessed about his involvement in this case and he also signed on the panchanama, through him M.O.1 and M.O.2 blouse and cut drawer of accused was seized.
PW-8 is the then Women Head Constable of Pothkapally Police Station deposed that on 06-08-2015 on the instructions of Circle Inspector of Police,
Sulthanabad she went to the house of the victim along with PW-2 doctor who examined the victim, however, the victim did not state anything to them as such no statement was recorded.
15.Based on the evidence of PW-1 to PW-8 it is submitted by the learned
A.P.P., that the victim who is suffering with mentally challenged women aged about 16 years when she was present at the house of Buchi Mallamma taken advantage of her loneliness at about 07:00 Pm or so accused had taken her to hayrick yard, there he committed sexual assault on the victim who cannot speak about the incident and accused taken out her blouse and there are split marks on her breast and scratches on her back. Some hayrick pieces were found on her tuft evidences that the incident was occurred at hayrick yard or hayrick heap. The learned A.P.P., further submitted that since the victim was coming out from the house of the accused whose house is 10 situated near to the house of the victim taken advantage of her mental condition the accused ravished her.
16.Admittedly, there is no direct witness to the occurrence except the circumstances. The contention of the prosecution is that PW-6 and PW-7 who are working as V.R.O., and Panchayat Secretary in their presence the accused was examined, accused himself admitted that he committed the offence and kept the blouse as well as underwear into his house. The same was seized at the instance of the accused. The confession leads to recovery of any article or thing should come within the purview of section 27 of Indian Evidence Act the same is admissible in evidence.
17.It is the case of the prosecution that any statement that was made by the accused in the custody of police and the said statement leading to recovery of property or thing it is admissible under section 27 of the Indian
Evidence Act. It is held by their lordship in a decision reported in (2009) 11
SCC Page 225 in a case between State of Punjab Vs. Gurnam Kaur that “if any reason by statements made by accused same facts have been discovered, the same would be admissible against the person who had made them”.
In another decision reported in (2001) 3 SCC Page 190 it is held by their lordship that “under section 27 of Indian Evidence Act disclosure statement only that portion of the information which distinctly relates to the fact readily thereby disclosure is admissible”.
In another decision reported in (2007) 2 SCC Page 310 and also in 2007 01 SCC Criminal Page 582 for similar preposition of law that facts 11 discovered also include material fact such as the place from which the object is produced and knowledge of the accused as to this only that portion of the information which relates to the fact discovered is admissible.
18.The various requirements of the section can be summed up as follows:
(I)The fact of which evidence is sought to be given must be relevant to the issue, it must be bear in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to the relevancy of other evidence connecting it with the crime in order to make the fact discovered is admissible.
(ii)The fact must have been discovered.
(iii)The discovery must have been in a consequence of some information received from the accused and not by the accused “own act”.
(iv)The person giving the information must be accused in an offence.
(v)He must be in the custody of police officer
(vi)The discovery of a fact in a consequence of information received from the accused in custody must be deposed to
(vii) There upon only that portion of information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible at one time it was held that the expression “fact discovered” in the section it is restricted to a physical or material fact which can be pursued by the senses and that it does not includes a mental fact now it is formally settled with the expression fact discovered includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this.
19.In the present case on hand when the accused was caught hold by the 12 police called PW-6 and PW-7 who are the V.R.O. and Panchayat Secretary government servants in their presence accused was interrogated and in the custody of police the accused voluntarily confessed about the commission of present offence and also produced the articles M.O.1 and M.O.2. Those articles were within the exclusive knowledge of the accused. The place where the articles were kept is with the accused keeping articles in his house and he brought from his house and produced before the court, subsequently, the articles were tested by the analyst found the semen and spermatozoa on the cut drawer of the accused. All these factors one way or other pointing out that the confession leading to recovery of property and the property contains the material object like semen and spermatozoa on the cut drawer of the accused and nothing is suggested to disbelieve the testimony of PW-6 and
PW-7. Under the given circumstances the oral evidence of investigation officer coupled with the mediators namely PW-6 and PW-7 is consisting, corroborating and trustworthy to believe and to come to the right conclusion of the mater.
Subsequently, the cut drawer of the accused was forwarded to R.F.S.L.,
Karimnagar for chemical analysis and analyst who examined the cut drawer contains semen marks.
20.The R.F.S.L., report is marked under Ex P-5. Item No.6 is the torn green colour cotton underwear with dirty stain marked as Item No.6, the analyst found that the semen and spermatozoa are detected in item No.6 and semen and spermatozoa are not detected on item No.5 namely cotton swab and glass slides and polyester blouse and etc. Based on the R.F.S.L., Report and also on the oral confession of accused before the PW-6 and PW-7 the mediators positively establish that the accused is responsible for the 13 commission of the offence.
21.The learned counsel for the accused submitted that the alleged age of victim at the time of incident is not 16 years, as such the provisions of
POCSO Act are not applicable to the facts on hand, in fact, the school certificate that was marked under Ex P-13 shows that the victim was born on 26-11-1999. According to the case of the prosecution the incident was occurred on 03-08-2015 by the date of incident she was aged about 16 years so. There is no force in the arguments advanced by the learned counsel for the accused.
22.The learned counsel for the accused further contended that the alleged mediators are not thoroughly checked before involving them as mediators for the alleged recovery of blouse as well as cut drawer of the accused. Under the given circumstances no weight-age can be given to their evidence for the recovery. It is not the case as if police found some articles like Narcotic
Drugs or any other drugs. In the present case on hand the accused himself voluntarily confessed before the government servants that he ravished the victim taken advantage of her mental condition and he himself went inside the house and brought M.O.1 and M.O.2 blouse as well as cut drawer and produced before the mediators, the same was seized by the police under the cover of panchanama. The panchanama contains the signatures of PW-6 and
PW-7, the evidence of PW-6 and PW-7 is consisting and corroborating to establish that it is the voluntary confession of the accused. No suggestion is made by the learned counsel for the accused to PW-6 and PW-7 by coercion, undue influence or putting the accused in threat he had given such false statement as contended by the learned counsel for the accused at the time of arguments.
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It is for the defence to put specific question to the witness that the accused was under the fear of police as such he had given such statement.
But no such questioner was put to the witness for the recovery. The witness are public servants have no obligation to speak falsehood on behalf of the prosecution. More so the evidence of PW-6 and PW-7 both are public servants from different departments and their evidence is consisting and corroborating and trustworthy to believe.
23.The learned counsel for the accused further contended that the alleged witness namely PW-6 and PW-7 are not the vicinity people and no local people were involved in this case to act as mediators. Under the given circumstances much weight need not be given to the evidence of PW-6 and
PW-7. For recovery of any property or any confession there is no hard and fast rule that neighbour is alone required to involve them for the alleged recovery. These 2 people are responsible government servants and they were chosen and involved as mediator for the confession of the accused. The accused himself voluntarily confessed about his involvement in this case in fact confession as it is not admissible in evidence, however, the confession leads to recovery of fact is admissible in evidence under section 27 of
Evidence Act.
24.In the present case on hand the prosecution recovered M.O.1 and
M.O.2 through the confession of the accused. Under the given circumstances the confession of the accused can be taken into consideration to come to the right conclusion of the matter.
According to the case of the prosecution the victim who is aged about 16 years and suffering with mentally challenged women and she was 15 subjected to sexual assault, it is just and necessary to see whether there is any evidence on record to establish that she was sexually assaulted by anybody much less accused. The oral evidence of the lady doctor who examined the victim she spoke before the court that on 06-08-2015 on the requisition of Inspector of Police, Sulthanabad she examined the victim aged about 17 years and found that physical status of the victim is normal. Her mental status is she is unable to understand what the doctor says and she is unable to give any reply and the victim is dump and deaf. Then the doctor examined the victim she found that multiple small aberrations 3x2 cm and 1x1 cm in size on her back of the chest. Labia Mazora are normal. She collected 2 vaginal smears and 2 vaginal swabs, vaginal wash to sent the same to the R.F.S.L., for chemical analysis. Hymen is not in tact, vagina is admitting 2 fingers without pain. The wearing apparels of the victim was seized and gave medical report. After receipt of the R.F.S.L., Report doctor gave her final opinion and doctor opined that the offence is occurred through the doctor Ex P-4 medical certificate, Ex P-5 R.F.S.L. Report, Ex P-6 Final opinion given by doctor were marked.
25.The learned counsel for the accused vehemently contended the doctor is not competent to say that the offence is occurred. The doctor ought to have state that sexual assault might have committed instead of the same she gave opinion that the offence was occurred.
Perused Ex P-6 final opinion given by the doctor she mentioned in her opinion that the offence is occurred. Perhaps it is the reason that the requisition that was given to the doctor by the police by mentioning the crime number, offence etc., particulars and the victim was examined for sexual assault. Perhaps it is the reason that she mentioned that the offence 16 is occurred. Though the opinion of the doctor is a piece of evidence but not as conclusive proof. Under the given circumstances much weight need not be given to the opinion of doctor. Obviously it is the reason that by observing the physical examination and also clinical examination and the doctor opined that the sexual assault was made on the victim. That can be taken into consideration to come to the right conclusion of the matter.
As can be seen from the R.F.S.L. Report and medical certificate and final opinion of the lady doctor that sexual assault was committed on the victim.
26.The learned counsel for the accused submitted that in natural course also Hymen may be ruptured not only in sexual assault cases. It is true the
Hymen is not in tact in the present case on hand and it was mentioned in the opinion of the doctor Hymen is not in tact, admitting 2 fingers without pain, but in the final opinion the doctor mentioned that vagina admitting 2 fingers with pain so there is a contradiction between the medical certificate and final opinion of the doctor as such much weight need not be given to the evidence of medical officer. The lady doctor who examined the victim gave her plausible explanation that by mistake it is mentioned with pain in fact there is no pain and vagina is admitting 2 fingers.
The learned counsel for the accused further submitted that there is no positive evidence on record to show that the victim was suffering with mental retardation and she is unable to speak or respond to the signs given by the technically qualified person like PW-2.
27.To substantiate the contention of the prosecution, the prosecution has 17 examined Dr. Purushotham as PW-10, he is working as Psychiatrist in
Government Headquarters Hospital, Karimnagar. On the requisition given by the Inspector of Police, Sulthanabad on 19-01-2016 he examined the victim aged about 17 years to her mental condition. Then he referred her to the
Institute of Mental Health Sciences situated at Erragadda at Hyderabad and he did not issue any certificate. Ex P-7 is the requisition given by the
Inspector. PW-12 is the doctor worked in Mental Care Hospital at Erragadda, he spoke before the court that on 14-03-2016 a committee of Psychiatrists examined the victim and assessed her I.Q found that the victim is having 30 of I.Q with severe mental retardation and disability is at 90% and issued Ex
P-9 disability certificate. In the given set of facts it is just and necessary to see the oral evidence of PW-2. PW-2 is the qualified postgraduate teacher working in dumb and deaf school at Karimnagar for the last 20 years. She know the victim.
On 05-08-2015 the Sub-Inspector of Police, Julapally made a request to her to assist the police in recording the statement of victim who is suffering with mental retardation. Then she went to the house of the victim found
Bhagyamma, Women Head Constable and PW-2 tried to examine the victim by signs however the victim did not respond. In the given set of facts it can be said that the doctors who tested the victim and found her I.Q is very low and she is suffering with 90% of mental disability. The facts and circumstances positively establish that the victim is a mentally retarded women and she is unable to speak or explain the surrounding circumstances.
Perhaps it is the reason that taken advantage of her helplessness and loneliness hence the person who committed sexual assault on her.
28.The learned counsel for the accused submitted that the alleged 18 confession before the PW-6 and PW-7 who are working as Village Revenue
Officer and Panchayat Secretary is clearly hit by section 25 of the Evidence
Act as such it is inadmissible in evidence. In the given circumstances it is just and necessary to see the section 25 of the Indian Evidence Act. It reads as follows “No confession made to a police officer shall be proved as against a person accused of any offence”.
29.The learned A.P.P., submitted that section 27 of the Indian Evidence Act is applicable to the present set of facts but not section 25 of the Act and drew the attention of the court that there is a recovery of M.O.1 and M.O.2 from the exclusive conscious possession of the accused as such the facts leads to recovery is admissible in evidence. In the given circumstances it is just and necessary to see section 27 of the Indian Evidence Act. It reads as follows “Provided that which may fact is deposed to as discovered in a consequence of information received from a person against of any offence, in the custody of police officer so much so of such information, whether it amounts to a confession or not so relates distinctly to the fact thereby discovered may be proved”.
The oral evidence of PW-6 and PW-7 who are independent witnesses in those presence the accused confessed that he committed sexual assault on the victim and he himself voluntarily brought M.O.1 and M.O.2 namely the blouse and cut drawer and produced before the police and also in the presence of PW-6 and PW-7 who are both the independent witnesses and police have seized the same and under the cover of Ex P-3 panchanama.
The panchanama under Ex P-3 was attested by both the PW-6 and PW-7 and also by the scribe i.e., P.C No. 2888. The prosecution is able to establish the fact of recovery of property, under the given circumstances I am of the 19 considered opinion that the evidence of PW-6 and PW-7 is consisting, corroborating and trustworthy to believe. Under the given circumstances it can be said that the accused is the only person who committed sexual rape on the victim.
30.The learned counsel for the accused drew the attention of the court by saying that there is no iota of evidence on record to connect that the accused is the person who committed sexual assault on the victim except the extra judicial confession. It is true that there is a little force in the arguments advanced by the learned counsel for the accused. Except the extra judicial confession and also the recovery of property and for the first time the mother of the victim saw that the victim is coming from the backside of the house of the accused. So it is one of the stray circumstances pointing that accused is the person responsible for the sexual assault. The counsel for the accused submitted that the doctor found that Hymen is not in tact. It does not mean that a sexual assault was made on the victim.
As can be seen from the medical certificate and the evidence of doctor it shows that the victim was sexually ravished and her blouse was taken away and the evidence of PW-4 one of the circumstantial witness who witnessed that she saw the victim without blouse and also noticed split marks on her chest, abrasions and scratches on the backside of the chest.
So, all these circumstances positively establish that the victim was recently sexually abused by some body who is the person committed sexual assault on her can be presumed through the evidence of PW-6 and PW-7 coupled with Ex P-3 panchanama and M.O.1 and M.O.2 properties. Here it can be seen that the cut drawer of the accused contains semen and spermatozoa.
The cut drawer of the accused was concealed in the house of the accused 20 and when the police demanded then accused produced before the mediators and the police officers then it was seized and subsequently it was sent to expert, expert opined that semen marks are present on the cut drawer. The lady doctor who examined the victim opined that the victim was sexually assaulted.
31.The oral evidence adduced by the prosecution and the circumstances established by the prosecution pointing that the accused is the person who committed rape on the victim who is suffering with mental disability of 90% aged about 17 years. Under the given circumstances I am of the considered opinion in the nature of these offences no one can, expect direct witness to the occurrence. However, a ghastly incident was occurred to a lady who cannot express the assault on her to others. Under the given circumstances it is the duty of the court to see the surrounding circumstances pointing the person who is responsible for the sexual assault on her and to come to the right conclusion and to meet the ends of justice.
In the present case on hand I am of the considered opinion that the accused is the person who committed sexual assault on the victim as such he is liable for the punishment under section 376 (2) (l) of IPC, Section 6 of the POCSO Act.
32.With regard to the punishment is concerned section 42 of POCSO Act deals with the alternative punishment which reads as follows “where an act or omission constitutes an offence punishable under this act and also under section 166-A, 354-A, 354-B, 354-C, 354-D….., 370, 370-A, 375, 376, 376-A, 376-C, 376-D, 376-E or section 509 of IPC then notwithstanding anything contained in any law for time being in force the offender found guilty of such 21 offence shall be liable to punishment under this act or under the I.P.C as provided for punishment which is greater in degree”.
The punishment for the offence under section 6 of the POCSO Act is who ever commits aggravated penetration sexually assault shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extent to imprisonment for life and shall also be liable to fine.
Section 376 (2) (l) it reads as follows “whoever commits rape on an women suffering from mental or physical disability --- the punishment is envisaged it shall not be less than 10 years, which may extent to imprisonment for life which shall may imprisonment for the remainder of that persons naturally live and shall also be liable to fine. Almost all the punishment envisaged in both the offences is one and the same as such it is just and necessary to impose the sentence that was awarded under section 376 (2) (l) of IPC.
33.In the result, the accused is found guilty for the offence under Section 376 (2) (l) of IPC, Section 6 of POCSO Act and accordingly he is convicted under Section 235 (2) of Cr.P.C.
Dictated to the Stenographer, transcribed him, corrected and
pronounced by me in the open Court on this the 15th day of October, 2018.
I Additional Sessions Judge, Karimnagar.
34.The accused is questioned with regard to quantum of sentence under
Section 235 (2) of Cr.P.C.
35.Heard accused with regard to the proposed sentence. Accused submitted that he is aged about 40 years, he is married having wife, son and daughter and eaking out his livelihood by doing coolie works and there are 22 no previous criminal cases nor any convictions at his credit and pleads the mercy of the court and the accused further submitted that he is having old sickly parents and all the family members are resting on his shoulders and requested the court to take lenient view in awarding the sentence.
36.Having taken into consideration of the facts and circumstances the charges with which the accused was roped with, under section 376 (2) (l) of
IPC and the accused committed heinous offence of sexual assault on a mentally retarded women. In the given circumstances he do not deserve to apply any provisions under Probation of Offenders Act and also section 360 of Cr.P.C. and to meet the ends of justice.
37.The accused is sentenced to suffer Rigorous Imprisonment for (10) years and also to pay a fine of Rs. 10,000/-, in default to pay the fine amount he shall suffer Simple Imprisonment for (6) months. The fine amount that was realized the same shall be paid to the victim under section 357 (3) of
Cr.P.C since the victim is mentally challenged, the same shall pay to her natural mother cum guardian namely PW-1 after appeal time is over. The remand period of accused if any during the trial or enquiry shall have to be given set off under section 428 of Cr.P.C. M.O.1 and M.O.2 shall be destroyed after appeal time is over.
Dictated to Stenographer, transcribed by him, corrected and
pronounced by me in the open Court on this the 15th day of October, 2018.
I Additional Sessions Judge, Karimnagar.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PROSECUTION: FOR THE DEFENCE:
PW.1 B. Swarupa- None - PW.2G. Kamala 23
PW.3B. Sandhya PW.4M. Shankaramma PW.5E. Malla Reddy PW.6V. Venkat Rao PW.7A. Punnamaiah PW.8T. Bhagyamma PW.9Dr. B. Rathnamala PW.10Dr. B. Purushotham PW.11Dr. K. Sathish Kumar PW.12Dr. K. Gangaram PW.13Md.Rafiq Khan PW.14T. Srinivas Rao
EXHIBITS MARKED
FOR THE PROSECUTION:
Ex.P.1 Report Ex.P.2Crime detail form Ex.P.3Panchanama dated 10-08-2015 Ex.P.4Medical certificate Ex.P.5R.F.S.L., Report Ex.P.6Final opinion given by doctor Ex.P.7Requisition given by Inspector to examine the victim Ex.P.8Potency test certificate Ex.P9Disability certificate Ex.P10First information report Ex.P11161 Cr.P.C Statement of PW-4 Ex.P12Requisition given to the Principal of Mentally Retarded School dated 19-08-2015 Ex.P13Bonafide certificate of the victim Ex.P14Requisition given to Principal, Deaf and Dumb School, Karimnagar dated 04-08-2015 Ex.P15Requisition given to Principal, Karimnagar District Freedom Fighter Trust School for Mentally Handicapped, Karimnagar,
dated 19-08-2015
FOR THE DEFENCE
-NIL-
MATERIAL OBJECTS MARKED
M.O.1Blouse M.O.2Cut Drawer
I Additional Sessions Judge, Karimnagar.