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IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 -
CUM- XII ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD.
Dated this the 08th day of September, 2022
PRESENT::SMT.J.KAVITHA,
X ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD.
FAC XII ADDL. METROPOLITAN SESSIONS
JUDGE, HYDERABAD
SESSIONS CASE PCS NO. 28 /20 22
Crime Number and Police Crime No.291/2021 of Police Station Abid Road, StationHyderabad. Name and description of the Mohammed Chotu, S/o. Late Mohammed accused personMoinuddin, Aged about: 52 years, Occ: Labour, C/o. Foot path opposite to Goshala, Near Bhagath Singh Statue, MJ Bridge, Hyderabad
Name and description of the The State of Telangana, represented by the complainantAssistant Commissioner of Police, Abids Division, Hyderabad Prosecution conducted bySri K. Durgaji, Additional Public Prosecutor.
Defence conducted bySri Md. Asif Ali, Legal Aid Counsel for the accused Offences chargedU/sec. 5(m) read with Section 6 of POCSO Act and Section 376AB of IPC
Plea of the accusedPleaded not guilty.
Finding of the CourtFound guilty of the offences under Section 5(m) read with Section 6 of POCSO Act and Section 376AB of IPC
RESULT In the result, the accused is found guilty for the offence under Section 5(m) read with section 6 of POCSO Act and Section 376AB of IPC, and accordingly convicted u/s.235(2) Cr.P.Cfor the above said offences and the accused is sentenced to undergo Rigorous Imprisonment for a period of Twenty (20) years and shall pay a fine of Rs.1,000/- (Rupees One thousand only) for the offence under section 5(m) read with Section 6 of The Protection of Children from Sexual
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Offences Act, 2012, in default of payment of fine, the accused shall undergo an additional simple imprisonment for a period of one month. In view of Section 42 of the POCSO Act, no separate sentence is imposed for the offence under Section 376AB of IPC.
(ii).The M.Os.1 to 3 (one Blue colour jeans pant, Blue colour full hand shirt, Pen drive) and the remaining case properties deposited vide P.I. No. 82/2022 of lower Court shall be destroyed after expiry of appeal time.
(iii).The period of remand undergone by the accused from 24-11-2021 to till date, shall be given set off from the quantum of conviction period under section 428 Cr.PC.
(iv).A copy of the judgment is furnished on accused at free of cost u/s.363 Cr.P.C by intimating him his right to prefer an appeal against the present judgment.
:: JUDGMENT:
1.The Assistant Commissioner of Police, Abids Division, Central Zone,
Hyderabad, filed charge sheet in Crime No.291/2021 against the accused for the offences punishable under Section 376AB of IPC and under Section 5 r/w 6 of the
Protection of Children from Sexual Offences Act, 2012.
2.The case of the prosecution in brief as follows :-
(a)On 24-11-2021 at 2.30 hours the complainant/PW1, who is the mother of the victim girl in this case has lodged a complaint with the police stating that on 23-11-2021 at about 6.00 a.m. she came to Nampally Railway Station by local train from Hafeezpet along with her two daughters, aged about 6 years and 1½ years and went to Nampally Yousufain Dargah and after some time she along with her children went to meet her brother at GPO ‘X’ Roads. While talking with her brother, she missed the train and therefore decided to stay along with her brother that night and at about 00.00 hours, when herself along with her daughters, brother and sister-in-law all slept together on the footpath of Bata Show Room,
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opposite to GPO Abids, one known person Mohammed Chotu/accused, aged about 52 years was also sleeping beside them on the same footpath. On 24-11-2021 at 2.00 a.m. one known auto person by name Syed Zahed, who was sitting in parked auto opposite to GPO, woke-up the complainant and her brother and informed that Mohammed Chotu was misbehaving with her kid. The complainant and her brother observed that her daughter/victim was in the lap of Mohammed Chotu.
The brother of the complainant/PW1 took the victim girl from Mohammed Chotu’s lap and they found the pant zip of the accused was opened and his private part was outside the zip and that the accused tried to commit rape on the victim girl.
Hence, she requested to take necessary legal action against the accused/Mohammed Chotu as per law.
(b)Basing on the above complaint, PW11/G. Gopi, Addl. Inspector of Police, registered a case in Cr.No.291/2021 under Section 376 r/w 511 of IPC and under
Section 11 r/w 12 of POCSO Act, 2012 and sent express FIR to the court and to all concerned and handed over the case file to LW22/B. Prasada Rao, Inspector of
Police, for further investigation.
(c)During the course of investigation, LW22 recorded the statement of PW1 and sent the victim girl/PW2 to Bharosa Centre for recording her statement and also to conduct medical examination of the victim girl along with PW1 through
LW18/Smt Sanjeeva Rani, WHC 8713 of PS Abid Road.
(d)During the course of investigation, LW22 visited the scene of offence, secured the presence of two panchas i.e. PW4/Saik Saleem and LW7/B. Nagesh and drafted the Crime Detail Form of the scene of offence, rough sketch and photographed the scene of offence.
(e)LW22 also sent the accused to Osmania Medical College for potency test, wherein PW8/Dr. G. Sugatha conducted the potency test of the accused and opined that “Nothing to suggest that the individual examined is not capable of performing the act of sexual intercourse”
(f)Subsequently, LW10/M. Sada Laxmi, WSI of Police recorded the statement of the victim minor girl wherein the minor victim girl spoke that accused has
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made her to sit on his lap, kissed her and penetrated his private part into her private part. PW9/Dr. Madhavi, Medical Officer has examined and conducted medical examination of the minor victim girl/PW2 and collected samples for sending them to FSL for biological examination and report. Basing on the statement of the victim girl/PW2, LW22 altered the section of law from Section 376 r/w 511 of IPC and Section 11 r/w 12 of POCSO Act to Section 376AB and
Section 5 r/w 6 of POCSO Act and filed requisition before the court.
(g)As the offences under Section 376AB and Section 5 r/w 6 of POCSO Act are grave in nature, PW13/K. Venkat Reddy, Asst. Commissioner of Police, Abids
Division, took up further investigation of the case. During the course of investigation, PW13 visited the scene of offence and caused enquires and observed the scene minutely and found nothing to seize as material evidence.
Later, PW13 examined PWs 1,3 and 7 and LW4 and recorded their statements in detail. The statement of PWs 1 to 3 and LW4 were got recorded through LW18.
Thereafter, PW13 also recorded the statements of PW10 and LW20/B. Jagadish, PC 30813.
(h)During interrogation, the accused voluntarily admitted his guilt of committing sexual assault on the minor victim girl. Then, PW13 affected the arrest of the accused and recorded his confessional statement in the presence of
PW5 and LW9/Syed Haji and seized clothes of the accused which he worn while committing the sexual assault on minor victim girl. PW13 served notice to the accused under Section 41(A) Cr.P.C and obtained acknowledgment.
(i)Further, on verification of records, the accused was involved in 16 cases.
During the course of investigation, PW13 collected CCTV Footages of the incident from LW16/Mohammed Muneeruddin and PW12 enhanced the CC footages and
PW13 collected the same from PW12.
(j)PW13 received FSL Report from TSFSL. He also collected the final medical opinion from PW9, who after perusing the FSL Report furnished by LW15/Dr. Shaik
Haseena, opined that “Swabs, smears are positive for spermatozoa. As hymen is also not intact and redness around the introitus indicates there is evidence of
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sexual assault”.
(k)PW13 produced PW2/victim girl before PW6/Dr. Abhijit Subedar for age determination examination. Accordingly, PW6 examined the victim girl/PW2 and opined that the victim minor girl/PW2 is aged about 4 to 5 years. On the requisition of PW13, LW14/V ACMM, Hyderabad recorded the statements of PWs 1 and 2 under Section 164 Cr.P.C. After collecting all the relevant documents and on completion of entire investigation, PW13 filed charge sheet against the accused for the offences punishable under Section 376AB of IPC and under Section 5 r/w 6 of the Protection of Children from Sexual Offences Act, 2012.
3.This court took cognizance of the case against the accused for the offences punishable under Sections 376AB of IPC and under Section 5 r/w 6 of the
Protection of Children from Sexual Offences Act, 2012.
4.On appearance of the accused and upon hearing, charges under Section 5(m) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 and under
Section 376AB of IPC were framed against the accused, read over the charges and explained to him. Accused denied the charges, pleaded not guilty and claimed to be tried.
5.During the course of trial, the prosecution examined PWs 1 to 13 and exhibited Exs.P1 to P13 and M.Os.1 to 3 in support of its case. After the closure of prosecution evidence, accused was examined under Section 313 Cr.P.C for the incriminating material appearing against him in the prosecution evidence.
Accused denied the same and reported no defence evidence and no documents were marked in support of his defence.
6.Heard arguments on both sides and perused the material available on record.
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7.Now the points for determination are:- (1) “Whether the prosecution is able to prove the guilt of the accused for the offence punishable under Section 5(m) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 beyond all reasonable doubt”?
And
(2) “Whether the prosecution is able to prove the guilt of the accused for the offence punishable under Section 376AB of IPC beyond all reasonable doubt”?
POINT :
8.The offences alleged against the accused are Sections 5(m) read with Section 6 of POCSO Act and Section 376AB of IPC. To establish the same, the prosecution examined Pws.1 to 13 and got marked Exs.P1 to
P13 and M.Os.1 to 3. PW1 is the complainant/mother of the victim girl, PW2 is the victim girl, PW3 is the brother of the victim girl, PW4 is the panch for CDF of scene of offence and rough sketch, PW5 is the panch for confessional statement of the accused, PW6 is the doctor who conducted age determination test of the victim girl/PW2 and issued Age Certificate, PW7 is the eye witness to the incident,
PW8 is the doctor who conducted potency test of the accused and issued Potency
Test Report, PW9 is the doctor who conducted medical examination of the victim girl and issued Final Medical Opinion, PW10 is the Police Constable who apprehended the accused, PW11 is the Police Officer who registered the case and issued FIR, PW12 is the Police Constable who enhanced the CC footages and
PW13 is the Investigating Officer of this case.
The exhibits marked by the prosecution during trial are Ex.P1 is the
Complaint given by PW1, Ex.P2 is the Panchanama along with rough sketch,
Ex.P3 is the confessional statement of accused, Ex.P4 is the Age Certificate of
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minor victim girl issued by PW6, Ex.P5 is the Potency Certificate of accused issued by PW8, Ex.P6 is the Medico-legal Examination Report of Sexual
Violence issued by PW9, Ex.P7 is the First Information Report in Crime No.
291/2021, Ex.P8 is the Section Alteration Memo, Ex.P9 is the Seizure Report,
Ex.P10 is the 164 Cr.P.C. statement of PW.1, Ex.P11 is the 164 Cr.P.C.
statement of PW.2, Ex.P12 is the 65-B Certificate dated 24.011.2021, Ex.P13 is the F.S.L. report. The material objects marked are M.O.1 is the one blue colour jeans pant, M.O.2 is the blue colour full hand shirt and M.O.3 is the Pen drive.
9.To attract the offence under Section 5(m)of POCSO Act, the prosecution has to prove that the victim is a child below 12 years and the accused committed penetrative sexual assault as defined under Section 3 of POCSO Act.
10.PW.1/the mother of minor victim girl deposed in her evidence that she has four children and the victim girl/PW2 is her third child and the accused by name Chotu is known to her and that by profession they are beggars. She further deposed that about six months back on one day she went to Nampally Railway station by local train from Hafeezpet along with her two daughters aged about 6 and 1½ years respectively and went to
Nampally Yousufain Dargah. Thereafter, she went to her brother’s house at
GPO X Roads, Abids, Hyderabad and after talking with his brother for a while, she realised that they missed the train and therefore, she stayed at her brother’s place and they all slept together on footpath of Bata showroom, opposite to GPO, Abids, Hyderabad. She also deposed that one known person by name Md.Chotu was also sleeping nearby them. She further deposed that at about 02.00 am on next day i.e., on 24-11-2021
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one known person by name Syed Zahed who was sitting in a parked auto opposite to GPO, woke her up and informed that the accused was misbehaving with the victim girl and immediately she along with her brother woke up and observed that the victim girl was on the lap of the accused and they also observed that the pant zip of the accused was opened and his private part was outside the zip and he tried to commit rape on victim girl and therefore she informed to the patrolling police who was patrolling on the road and the police caught-hold the accused and took him to the police station. She lodged complaint under Ex.P1.
11.PW.2/minor victim girl in her evidence deposed that the accused-
Chotu committed Gandha Kaam against her and her mother and uncle beat him.
12.PW.3 who is the brother of PW.1 also deposed in the same lines as that of PW.1.
13.PW.4 deposed that on 24-11-2021 at about 8.00 am the police of
Abids called him along with LW7/B. Nagesh to Bata Showroom, near GPO,
Abids, Hyderabad and noted down the details of the crime and drafted rough sketch of the scene in their presence and after completion of panchanama he along with LW7 attested the same. Ex.P2 is panchanama with rough sketch.
14.PW.5 deposed that on 24-11-2021 at about 6.00 pm the police of
Abids called him along with LW9/Syed Haji to the police station where they found one person in the custody of police, at the request of the police they
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enquired the said person and further the said person confessed voluntarily that he committed rape against the minor girl who was sleeping beside her mother on footpath near Bata showroom, Abids, Hyderabad by keeping her in his lap and opened his pant zip and penetrated his private part into her private part. He also deposed that police recorded the same under cover of confessional panchanama and after completion of the same he along with
LW9 attested the panchanama. PW.5 identified the accused as the person who confessed willfully on that day. Ex.P3 is the confessional panchanama.
15.PW.6/the then Professor of Forensic Medicine, Osmania Hospital,
Hyderabad from 2016 to 03-06-2022 deposed that on 15-12-2021 he received a requisition from PS Abids Road to estimate the age of Ahmadi
Begum D/o Md.Nawaz and Rizwana Begum in the presence of M.Laxmi Bai,
Care taker (Aaya), Yousufguda, Hyderabad and WPC 31060 of PS Abids
Road and accordingly, he examined general & physical examination, dental examination and radiological examination, he opined that victim girl D/o
Md.Nawaz is aged about 4 to 5 years and Ex.P4 is certificate issued by him.
16.PW.7 who is the eye witness deposed that about 7 or 8 months back on one day at about 1.30 am while he was waiting for the customers by parking his auto nearby T Junction at GPO, Abids, he observed the accused sitting nearby some persons who were sleeping and committing sex with a small girl, aged about 4 to 5 years. He further deposed that the accused made the victim girl sit in his lap and opened his pant zip and took out his private part out from the pant zip and inserted the same into the
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private part of the victim girl and on observing the same he rushed there and woke up the persons who were sleeping there on the footpath at Bata showroom and meanwhile patrolling police came there and they handed over the accused to the police and the police examined him and recorded his statement.
17.PW.8 who is the then Associate Professor in the department of
Forensic Medicine Osmania Medical College deposed that on 24-11-2021 she received the requisition from Inspector of Police of PS Abids to examine the accused by name Mohammed Chottu S/o Late Mohd.Mohinuddin, aged about 52 years and accordingly she examined the accused and found 1) laceration of 2x2 cm X muscle deep on right parietal area, 2) Old heald scar of 7x5 cm on front of left side of upper chest, 3) Old heald scar of 8 cm oblique on left side of the neck, 4) A transverse old heald scar of 13 cm length on left side lower chest and 5) old heald scar of 8x4 cm on front of right fore arm. She also conducted potency test of the accused and concluded that there is nothing to suggest that the individual examined is not capable of performing act of sexual intercourse. Ex.P5 is the certificate issued by her.
18.PW.9/the then Medical Officer at Shamshabad deposed that on 24- 11-2021 at 3.15 pm she received requisition from PS Abids Road to examine the victim who is aged about 06 years and accordingly she examined her and issued report under Ex.P6.
PW.10/the Police constable deposed that on 23-11-2021 while he was was attending patrolling duty from 8.00 pm along with PC-Jagadish
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(Lw20) in BC-III sector area and when they reached Bata showroom near
Bigbazar in Abids at about 2.00 am, they observed three persons including one woman quarreling with each other, when they enquired the woman who is the mother of the victim girl on which she told that while she along with victim girl/her daughter and her brother were sleeping on the footpath at Bata showroom, Abids, Hyderabad the accused was also sleeping nearby them and at midnight, the accused took victim girl to some distance and made her sit in his lap and committed sexual assault on that victim girl and her brother witnessed the same. They took the accused to the police station and produced before the SHO and the police examined him and recorded his statement.
19.PW.11/the Addl. Inspector of police of PS Abids Hyderabad deposed that on 24-11-2021 at about 2.30 am he received complaint from
Pw.1 and registered the same as case in Cr.No. 291/2021 U/sec 376 r/w 511 of IPC and Sec 11 r/w 12 of POCSO Act and issued FIR. Ex.P7 is FIR and later he handed over the case file to Lw.22/B. Prasada Rao, Inspector of Police for further investigation.
20.PW.12/PC-5740, IT Cell Video Analysis deposed in his evidence that on 01-12-2021 the police Abids handed over one CD containing CC TV footage and asked me to enhance the same as it was not clear and accordingly by using Ikena Forensic Studio tool he enhanced the footage and returned in the same CD.
21.PW.13/the Investigating Officer deposed about the investigation done by him in this case. He deposed that LW.22 received CD file from
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LW.21 and verified the same and took up investigation and during the course of investigation LW.22 recorded the statement of PW.1 and sent a requisition to Bharosa Centre, Nampally for recording the statement of
PW.2 victim minor girl and also the medical examination and therefore referred to PW.2 to Bharosa Centre along with the escort of LW.18, WHC 8713. Thereafter LW.22 visited the scene of offence i.e., the footpath at
Bata Showroom opposite to GPO Cross Roads, Abids, Hyderabad and noted down the details of crime and drafted rough sketch and photographed the scene of offence in the presence of PW.4 and LW.7 B.Nagesh. He deposed that thereafter LW.22 sent the accused to Osmania Medical College for potency test where PW.8 examined him and issued report under Ex.P5 and
LW.10 M.Sadalaxmi WSI of Police CCS, DD, Bharosa Centre recorded the statement of the minor girl.
22.PW.13 further deposed that he got conducted the medical examination test of the victim girl by PW.9 who issued Ex.P6 and basing on the statement of PW.2, LW.22 altered the section of law from section 376 r/w 511 IPC and section 11 r/w 12 of POCSO Act to section 376 AB IPC and section 5(m) read with 6 of POCSO Act. Ex.P8 is section alteration memo.
Since section was altered, he took up further investigation and verified the investigation done by LW.22 and found it on correct lines and during the course of further investigation he visited the scene of offence and caused enquiries and observed the scene minutely and no material evidence was seized. Later he examined PW.1 again and also recorded the statements of
PW.3 and PW.7 and LW.4 the sister in law of LW.1 with the assistance of
LW.18 WHC 8713. He also recorded the statements of PW.10 and LW.20
B.Jagadish PC 30813. He affected the arrest of the accused on 24.11.2021
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and on enquiry he voluntarily confessed about the commission of offence.
He secured the presence of PW.5 and LW.9 Syed Haji and in their presence he recorded confessional statement of the accused under Ex.P5 and in pursuance of the confession of the accused he seized the clothes of the accused which were worn by him at the time of offence. Ex.P9 is the seizure report. MO.1 is one blue colour jeans pant, MO.2 is blue colour full hand shirt. PW.6 examined the victim girl and issued report under
Ex.P4. He further deposed that PW.9 collected the swabs and vaginal smear of the victim girl and also collected one snuff colour frock, yellow flower printed design and brown colour leggin of the victim and he forwarded the same along with MOs.1 and 2 to FSL.
23.During the course of further investigation he collected CCTV footage of the incident from LW.16 Mohd. Muneeruddin and sent the same to Inspector of Police, IT Cell, Video Analysis at Commissioner of Police,
Hyderabad to develop the CCTV footage wherein PW.12 enhanced the
CCTV Footage and returned the same in pen drive and he collected the final medical opinion from PW.9 dated 31.12.2021.
He further deposed that he filed a requisition before LW.14 the
Hon’ble V ACMM, Hyderabad to record the statements of PWs.1 and 2,
accordingly the Hon’ble V ACMM, recorded the 164 Cr.P.C statements of
PW.1 and PW.2. Ex.P10 is 164 Cr.P.C statement of PW.1. Ex.P11 is 164
Cr.P.C statement of PW.2. I collected 65-B certificate from LW.16 along with pendrive. Ex.P12 is the 65-B certificate dated 24.11.2021. MO.3 is the pendrive. Ex.P13 is FSL Report. He also deposed that as per his investigation the accused Mohd. Chotu is also involved in 16 cases pertaining to property offences as mentioned in the charge sheet.
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24.To establish the alleged offence under Section 5(m) of the POCSO
Act, the accused should have committed penetrative sexual assault as defined under Section 3 of the POCSO Act against the child under 12 years as defined under Section 5(m) of the Act.
25.The complainant who is mother of the victim girl is a beggar and she did not produce the date of birth certificate of the victim before the police but orally deposed that the child is aged about 6 years and there is no evidence on record that she is a school going child, no date of birth certificate is collected by PW.13, but PW.13 deposed that he received CD file from LW.22 and verified the investigation done by him and found it on correct lines. He also deposed that LW.22 sent PW.2/the victim minor girl to
Bharosa Center along with escort LW18/WHC 8713 for recording her statement and also for medical examination. PW.6 examined the victim girl/Pw.2 on 15-12-2021 and he deposed that on examining PW.2 generally, physically, dentally and also radiologically, he opined that the victim girl is aged about 4 to 5 years as on the date of his examination and accordingly, he issued certificate under Ex.P4. Therefore, as per the evidence of PW.6 the victim girl is 4 to 5 years and as per the version of the complainant and others the victim girl is 6 years old. However, she is a child below the age of 12 years as defined under Section 5(m) of POCSO Act.
26.After the accused is arrested he was referred to medical examination and the doctor who examined him deposed that he observed some scars and lacerated injuries on his body, but he has not stated in his report the age of the injuries and the weapon used in commission of that injuries.
Therefore, we cannot say whether the accused sustained the injuries on
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the date of the incident or much earlier to the same because he is involved in other criminal cases. But PW.8 also deposed that she conducted potency test of the accused and she issued report under Ex.P5 and accordingly, the accused is capable of performing act of sexaul intercourse.
27.It is alleged against the accused that on the night while Pws.1 to 3 along with the wife of PW.3 were sleeping and also the accused was sleeping nearby them, the accused committed penetrative sexual assault against the victim girl/PW.2 and the same was witnessed by PW.7/Syed
Zahed and PW.7 woke up Pws.1 to 3 and informed them about the incident and they all woke up and observed PW.2 in the lap of accused and his pant zip was found opened and his private part was out of his pant zip and he committed sexual assault against PW.2 and meanwhile PW.10 along with
LW.20 were attending patrolling duty in BC-III sector area and they reached the place of incident and found the quarrel between the complainant and the accused and PW.3 and immediately they apprehended the accused and took him to the police station when the complainant informed them about the incident.
28.PW.2 was sent to medical examination and PW.9 examined her and she deposed that on 24.11.2021 at 03:15 p.m. she received requisition from P.S. Abids and she examined her and issued report under Ex.P6. The incident alleged to have taken place in the early hours of 24.11.2021 around 02:00 a.m. and on the same day in the afternoon the victim was examined and the report under Ex.P6 shows that the hymen was found not intact and there was redness around introitus and there was bleeding on touch. It is further mentioned in the report that the FSL report shows that
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human semen was detected on item Nos. 1 to 4, 7 and 8 and human blood is also detected on item No.7 and PW.9 gave her final opinion that the swabs, smears are positive of spermatozoa and hymen is also not intact and redness around the introitus indicates that there was evidence of sexual assault. This document is neither denied nor questioned by the
Defence and except the suggestion that she did not examine the victim and she did not issue the Ex.P6, there is nothing suggested to her to bring on record the evidence which is helpful to the accused. According to the evidence of PW.9 and Ex.P6, the victim girl/PW.2 was subjected to sexual assault and as her hymen was found not intact and semen and spermatozoa, blood and redness was found on her private part.
29.Now the point whether the accused committed the offence of penetrative sexual assault against PW.2 or not, the prosecution relied upon the evidence of Pws.1 to 3 and PW.7. The complainant who is the mother of the victim girl as PW.2 and her brother who is examined as PW.3 unanimously deposed that on 23.11.2021 while all of them were sleeping on a footpath of Bata showroom opposite to GPO, Abids, Hyderabad, the accused who is already known to them committed the penetrative sexual assault against PW.2 and PW.7 who was sitting in an auto opposite to them observed the act of the accused and went near to them and woke up Pws.1 to 3 and informed them about the same and when they woke up they also observed the incident and while all of them were quarrelling, the patrolling party went there and they took the accused to the police station. PW.13 also collected the CCTV footage of the place of offence and he got enhanced the same by PW.12 as it was not clear and on 01.12.2021 PW.12 got that CCTV footage enhanced and submitted by using Ikena Forensic
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studio tool, but the CD when played it is not clear that the accused committed the act against PW.2. Therefore, it is no way helpful to the prosecution case.
30.PW.2 who is the victim girl also deposed in her evidence that the accused committed Gandha kaam against her. He identified the accused as
Budda. PW.2 is also examined by the Magistrate under Section 164 of
Cr.P.C. and in the said statement when it was questioned by the Magistrate what did the uncle do to her, what did the uncle do to her, PW.2 shown her little finger and when suggested it as toilet, she said ‘yes’ by nodding her head and when it was further questioned what did uncle do to her, she again showed her right little finger and also her toilet area and when again it is asked her whether the uncle did bad (Gandha) to her, she said ‘yes’ by nodding her head and when the Magistrate repeated the questions and
PW.2 made gestures and confirmed the above answers. From this it is evident that the girl being 6 years old stated to the Magistrate that the accused kept his toilet part into her toilet part. Ex.P6 along with Ex.P11 proves that the accused committed the said act against PW.2.
31.During the course of investigation the scene of offence panchanama was conducted in the presence of PW.4 and LW.7 and PW.4 evidenced that in his presence the police noted down the details of crime at Bata showroom near GPO, Abids and drafted rough sketch of the scene under
Ex.P2. Moreover the accused also confessed about the commission of offence in the presence of PW.5 that he committed rape against PW.2.
Ex.P3 is the confession panchanama which shows that the accused
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confessed his guilt that to fulfill his sexual desire he committed the offence against the PW.2.
32.As per Section 29 of POCSO Act if a person is prosecuted for committing or abetting or attempting to commit any offence under
Sections 3, 5, 7 and Section 9 of POCSO Act, the 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.
33.Therefore, the presumption so raised shall hold good and continue unless contrary is proved. When the law mandates for raising a presumption it is equivalent to show presumption within the meaning of
Section 4 of the Indian Evidence Act which provides that whenever it is directed by this Act (Indian Evidence Act) that the Court shall presume a fact it shall regard such fact as proved unless and until it is disproved.
Therefore, from the testimony of prosecution witnesses it is established that the accused committed penetrative sexual assault as defined under
Section 3 of POCSO Act against PW.2 who is a child below 12 years and therefore, the presumption that the accused committed the offence holds good unless it is disproved.
35.Except giving suggestions that the accused is no way concerned with the alleged offence and he never did any bad things to PW.2 and a false case has been filed by the complainant against the accused, nothing suggested by the defence to help the accused for acquittal.
36.The punishment prescribed for the offence under Section 376AB of IPC is rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean
Judgment in SC PCS 28/2022 19/22 Dt : 08-09-2022.
imprisonment for the remainder of that person’s natural life, and with fine or with death. Further the punishment prescribed in Section 6 of POCSO Act for the offence under Section 5(m) is 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. As per section 42 of
POCSO Act the accused has not been sentenced separately for the offence under Section 376AB of IPC, but for the offence under Section 5(m) read with
Section 6 of POCSO Act.
37.Under the above discussions, it is held that the prosecution proved the guilt of the accused for the offences under Section 5(m) read with
Section 6 of POCSO Act and Section 376AB of IPC. In the result, the accused is found guilty for the offence under Sections 5(m) read with
Section 6 of POCSO Act and Section 376AB of IPC and he is accordingly convicted under Section 235 (2) of Cr.P.C. However, as per Section 42 of the POCSO Act, where an offence punishable under this Act and also under Indian Penal Code are proved, then, notwithstanding anything contained in any law for the time being in force, the accused 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.
Therefore, the accused is held for punishment for the offences under
Section 5(m) read with Section 6 of POCSO Act and accordingly, he is convicted under Section 235(2) of Cr.P.C.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court on this the 08 th day of September,
2022.
Sd/-
X ADDL. METROPOLITAN SESSIONS JUDGE,
FAC: XII ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD.
Judgment in SC PCS 28/2022 20/22 Dt : 08-09-2022.
38.The accused is questioned with regard to the quantum of sentence going to be imposed upon him for which, he pleaded that he is aged about 53 years and suffering from old aged ailments and cancer and prayed this court to take a lenient view in imposing punishment.
39.Moreover, the accused is shown as involved in 16 cases pertaining to property offences of Afzalgunj police station and two of them are acquitted and two of them are compromised and in remaining 12 cases the accused is convicted.
40.However, having regard to the facts and circumstances of the case it is held that the accused is not entitled for any benefits under section 3 and 4 of The probation of Offenders Act 1960 and it is held that no leniency can be shown with regard to quantum or severity of the conviction against the accused.
41(i).Therefore, the accused is sentenced to undergo Rigorous
Imprisonment for a period of Twenty (20) years and shall pay a fine of
Rs.1,000/- (Rupees One thousand only) for the offence under section
5(m) read with Section 6 of The Protection of Children from Sexual
Offences Act, 2012, in default of payment of fine, the accused shall undergo an additional simple imprisonment for a period of one month. In view of Section 42 of the POCSO Act, no separate sentence is imposed for the offence under Section 376AB of IPC.
Judgment in SC PCS 28/2022 21/22 Dt : 08-09-2022.
(ii).The M.Os.1 to 3 (one Blue colour jeans pant, Blue colour full hand shirt, Pen drive) and the remaining case properties deposited vide P.I. No.
82/2022 of lower Court shall be destroyed after expiry of appeal time.
(iii).The period of remand undergone by the accused from 24-11- 2021 to till date, shall be given set off from the quantum of conviction period under section 428 Cr.PC.
(iv).A copy of the judgment is furnished on accused at free of cost u/s.363 Cr.P.C by intimating him his right to prefer an appeal against the present judgment.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court on this the 08 th day of September,
2022.
Sd/-
X ADDL. METROPOLITAN SESSIONS JUDGE,
FAC XII ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD.
APPENDIX OF EVIDENCE
NO. OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION
PW1- Rizwana Begum, (the complainant/mother of the victim girl) PW2- The victim girl. PW3- Sri Mohd. Bin Yamani, (brother of complainant) PW4 – Shaik Salem, (panch for CDF of scene of offence & rough sketch) PW5 – B. Srinivas, (panch for confessional statement of accused) PW6 – Dr. Abhijeeth Subedar, (Professor, Dept. of Forensic Medicine, OMC/OGH, Hyderabad who conducted age determination test on victim girl and issued Age Certificate) PW7 – Syed Zahed, (eye witness) PW8 – Dr. M. Sugatha, (Associate Professor, Dept of Forensic Medicine & Toxicology,OGH, Hyderabad who conducted potency test on accused and issued report) PW9 – Dr. Madhavi, (Doctor who conducted medical examination test of victim girl and collected M.Os and issued final medical opinion) PW10- D. Nagaraju, (PC-7575 of P.S. Abid Road) PW11 – G. Gopi, (Addl. Inspector of Police, Abid Road P.S. who issued FIR) PW12 – G. Akshith, (PC-5740, IT Cell Video Analysis) PW13 – K. Venkat Reddy, (Asst. Commissioner of Police/Investigating Officer)
Judgment in SC PCS 28/2022 22/22 Dt : 08-09-2022.
NO. OF WITNESSES EXAMINED ON BEHALF OF DEFENCE : -Nil.
NO. OF EXHIBITS MARKED ON BEHALF OF PROSECUTION :
Ex.P1 - Complaint given by PW1. Ex.P2 – Panchanama along with rough sketch Ex.P3 – Confessional statement of accused Ex.P4 – Age Certificate of minor victim girl issued by PW6 Ex.P5 – Potency Certificate of accused issued by PW8 Ex.P6 – Medico-legal Examination Report of Sexual Violence issued by PW9 Ex.P7 – First Information Report in Crime No. 291/2021 Ex.P8 – Section Alteration Memo Ex.P9 – Seizure Report Ex.P10 – 164 Cr.P.C. statement of PW.1 Ex.P11 - 164 Cr.P.C. statement of PW.2 Ex.P12 – 65-B Certificate dated 24.011.2021 Ex.P13 – F.S.L. report
NO. OF EXHIBITS MARKED ON BEHALF OF DEFENCE : Nil
NO. OF MATERIAL OBJECTS MARKED :
M.O.1 – one Blue colour jeans pant, M.O.2 – Blue colour full hand shirt M.O.3 – Pen drive
Sd/-
X ADDL. METROPOLITAN SESSIONS JUDGE,
FAC XII ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD.