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IN THE COURT OF FAST TRACK SPECIAL JUDGE FOR EXPEDITIOUS TRIAL AND
DISPOSAL OF RAPE AND POCSO ACT CASES,
MEDCHAL-MALKAJGIRI DISTRICT AT KUKATPALLY.
Friday, the 28thday of March, 2025
Present: Sri J. Vikram FAC:Fast Track Special Judge for Expeditious Trial and Disposal of Rape and POCSO Act cases, Medchal-Malkajgiri District at Kukatpally.
SC No.1625 of 2022
1 Name of the complainantThe State of Telangana through the Inspector of Police, Balanagar Police Station. 2 Name of the accusedSri. Barkath Ali S/o.Mohammad Hasan, Aged 21 years, Occ:Helper at King Star Bakery, R/o.Ferozguda Railway Track, Balanagar, N/o.Tasra village, Tarbanga District, Bihar State. 3 Offences complained ofUnder Sections 377 of IPC and Section 3 read with 4 of POCSO Act 2012. 4 Crime No. & Name of the PSCrime No.452 of 2022 of PS Balanagar 5 Plea of the accusedPleaded not guilty 6 Finding of the CourtFound Guilty 7 Sentence or orderIn the result the accused is found guilty for the offences under Section 3 read with Section 4 of
POCSO Act, 2012.
(a) The accused is sentenced to undergo for offence under section 3 read with 4(2) of
POCSO ACT, 2012 with Rigorous Imprisonment for a term of 20 years (Twenty Years) and pay fine of Rs.10,000/- (Rupees Ten Thousand
Only) and in default of payment of fine he shall undergo Simple Imprisonment for a period of six months.
The Accused is informed regarding the right of appeal and free copy of Judgment is handed over to the accused.
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The remand period of the accused from 27.09.2022 to till date i.e. 28.03.2025 (2 years 6 months 1 day) shall be set off under section 428 of Cr.P.C. The accused is informed that if he does not have capacity to engage an advocate to prefer an appeal legal aid can be provided to him in case if he intends to prefer an appeal.
The Mos 1 to 5 shall be destroyed after expiry of appeal time as per the procedure laid down.
This Sessions Case is coming before me for final hearing in the presence of
Sri. Y. Nageshwar Rao, Incharge Additional Public Prosecutor and Sri G.V. Rama Krishna,
Additional Public Prosecutor for the State and Sri. Santoshi Kumari, Legal aid Counsel for
the accused and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.The Inspector of Police, Balanagar Police Station filed the charge sheet against
Accused alleged to have committed offence punishable under Sections 377 of IPC,
Section 3 read with section 4 of Protection of Children from Sexual Offences Act, 2012 (Hereinafter referred as POCSO Act, 2012).
The averments of the charge sheet are as follows :
2.That on 26.09.2022, at 12:30 hours, LW22 received a complaint in which the complainant stated that she, along with her husband and their two sons and one daughter, moved to Balanagar, Hyderabad, about 7 years ago from Bihar for livelihood purposes.
They work as laborers in a company in Balanagar, and their two children study at Naveen
Convent School in Gowtham Nagar. The younger son, aged 5, is in the 1st standard at
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XXXX School. The complainant further stated that Barkath Ali, who is from Bihar and lives in the same area, works at King Star Bakery in Ferozguda. For the past week, Barkath Ali had been visiting their house and playing with her children. During the Dussehra vacation from 26.09.2022 to 09.10.2022, the children stayed at home. That on 26.09.2022, at 0800 hours, the complainant and her husband left for work, leaving their three children at home.
The elder son and daughter were playing with their friends, while the younger son stayed at home. At around 1030 hours, Barkath Ali went to the complainant's house and under the pretext of giving the victim a chocolate, took the younger son to a small room near
Ferozguda railway track and sexually assaulted him. After the assault, Barkath Ali left the victim at the complainant's home and fled away. When the elder son and daughter returned home, they found that their younger brother was crying. The elder son then took the victim to the complainant's workplace, where the complainant asked what had happened. The victim recounted the incident to the complainant.
3.Based on the contents of the above complaint, LW22-Sri K. Bhasker, Inspector of
Police, PS Balanagar, Cyberabad, registered a case in Crime No. 452 of 2022 under
Section 377 IPC and Section 3 read with Section 4 of the POCSO Act, and commenced the investigation.
4.During the investigation, LW22 examined and recorded the statement of LW1, the complainant, who corroborated the facts stated in the FIR. LW22, along with LW16 and
LW17, visited the scene of the offence located in a small room near the Ferozguda railway track in Balanagar. They conducted inquiries, secured the presence of two mediators, LW9 and LW10, recorded observations, and prepared a rough sketch and a Crime Detail Form.
LW22 made a requisition to the Bharosa Center in Medchal to record the statement of the victim boy, LW2. LW15 examined and recorded the detailed statement of the victim boy under videography and incorporated it into the case diary. LW22 made a requisition to
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LW13, Dr. Sarah Seemeen, Lady Medical Officer at the Government Hospital in Malkajgiri, for the examination of the victim boy. The Lady Medical Officer was requested to preserve the anal swabs of the victim for sending to the FSL for examination and report. LW13 preserved the anal swabs of the victim, LW2, as well as the victim boy's clothes, a pink shirt and blue pants. Later, LW22 also examined the witnesses, LW3 (father of the victim),
LW4 to LW8, and recorded their detailed statements, incorporating them into Part-II of the case diaries. While the investigation was in progress, on 27.09.2022 at 1000 hours, the deputed ID party team, LW18 and LW19, apprehended the accused at King Star Bakery in
Gowtham Nagar, Balanagar, and produced him before LW22.
5.On interrogation by LW22, the accused, Barkath Ali, confessed to the crime. He stated that on 26.09.2022, at about 1030 hours, he found the victim boy alone at his house and lured him with the promise of buying a chocolate. He then took the boy to a room near the Ferozguda railway track and sexually assaulted him. The accused further admitted that on 27.09.2022, at 1000 hours, he was apprehended by the police at the same room and brought to Balanagar Police Station. He also disclosed that he kept his clothes in a cover at the room where he committed the offence. The police, along with mediators LW11 and
LW12, found a cover containing an ash-colored T-shirt and blue jeans, which were seized along with an Oppo mobile phone (IMEI 1: 865399067934414, IMEI 2:
865399067934406). Panch chits were pasted on the seized items.
6.LW22 made a requisition to LW14, Sri Venkata Nagaraju, Professor and Head of the
Department of Forensic Science at Gandhi Medical College, Secunderabad, to conduct an age determination test and a potency test on the accused. LW14 examined the accused and reported that the accused is aged about 20-21 years and issued a potency report stating that there is nothing to suggest that the accused is incapable of performing a
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sexual act. LW22 then served a notice under sections 50 and 50(A) Cr.P.C. to the accused and his father, informing them of the arrest details, and remanded the accused to judicial custody. LW22 requisitioned the Hon'ble XIII Addl. Metropolitan Magistrate at Kukatpally,
Cyberabad, to record the statement of the victim boy, LW2. Accordingly, LW20, Sri Murali
Mohan, examined and recorded the detailed statement of the victim boy, LW2. LW21,
Shaik Haseena Parveen, Assistant Director at the Telangana State Forensic Science
Laboratories, Red Hills, Hyderabad, examined the preserved material objects and furnished a report stating that "Semen and Spermatozoa are not detected on item No: 1 to 5 and Blood is not detected on item No: 2 to 5". The report is enclosed for perusal.
7.LW13-Dr. Sarah Seemeen, Civil Asst. Surgeon Specialist at the Community Health
Center in Malkajgiri, furnished an opinion based on the Forensic Science Laboratories report. She stated that "the victim's findings are consistent with sexual intercourse with force. Although the FSL findings are negative for sperm and spermatozoa, the sexual assault cannot be ruled out."
8.On appearance of the accused, copies were furnished and he was examined and charges framed against him for the offences under section 3 read with 4 of POCSO Act, 2012. The substance of the accusation was explained to the accused to which he denied and claimed for trial by pleading not guilty.
9.The court proceeded with the prosecution evidence and examined the prosecution witnesses PW1 to PW15 and got marked Ex.P1 to Ex.P13, and material object MO1 to
MO5 as evidence.
10.After completion of the prosecution evidence, the accused was examined under
Section 313 of the Code of Criminal Procedure. The incriminating evidence have been
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explained to the accused and he denied the same. However, he did not choose to adduce any evidence on his behalf.
11.Heard the learned in-charge Special Public Prosecutor and learned counsel for the accused and perused the entire record.
12.Now the point that arises for determination is :
1. Whether as on 26.09.2022 the victim boy was below 18 years of age, and minor as per section 2(1)(d) of the Protection of Children from Sexual Offence Act, 2012?
2. Whether the prosecution could able to prove its case against the accused for the offences punishable under Section 3 read with 4 of POCSO Act,
2012, with which, he is charged, beyond all the reasonable doubt. ?
3. To what relief. ?
Point No.1 and 2 are answered jointly to avoid repetition:
13.In the present case, the charges framed against the accused are section 3 read with Section 4 of POCSO Act, 2012. Therefore, the initial burden lies upon the prosecution to establish beyond all the reasonable doubts against the accused that he is entitled to be punished for the alleged offences against him. Therefore, the prosecution has to establish that the acts of the accused falls within the purview of POCSO Act 2012 as well. The prosecution has examined Pws 1 to 15 and Exs P1 to P13 and Mos 1 to 5 on its behalf.
The Ld APP has given up LW3, LW7, LW9, LW12 and Lws 19 to 21. No defence evidence on behalf of the accused.
14.Before appreciating the facts on hand, the relevant provision of law is hereby reproduced for the sake of clarity and better understanding.
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Section 2(d) of POCSO Act reads thus:
"Child" means any person below the age of eighteen years.
15.PW1 is the mother of the victim who deposed that the victim is his son. Further deposed that she knows the accused who was present in the court hall. She deposed that she has got two sons and one daughter and by the date of the offence, the age of the victim was 5 years and he was studying in 1st Class in XXX convent school.
16.PW2 is the victim who deposed that PW1 is his mother and LW3 is his father. That he got one brother and sister and he studied 1st class. However, he was unable to give the name of the school he studied. Further he identified the accused standing in the court hall as Barkath Ali. The prosecution to further strengthen its case that the victim is a minor got marked Ex. P13 which is the birth certificate of the victim. As per Ex. P13, the date of birth of the victim is 12.02.2017. Thus by filing Ex. P13 the prosecution could successfully establish that the victim is below 18 years and thus the acts of the accused falls under the purview of the POCSO Act. Therefore, in view of the evidence of Pws 1 and 2, it is held that as on the date of offence i.e. 26.09.2022, the victim was a minor as alleged in Ex. P1.
It is also necessary to make a note that the defence did not suggest any alternative date of birth of the victim nor denied the date of birth shown in Ex. P13. Hence, point no. 1 answered in favour of the prosecution.
17.Further delving into the evidence on record, it is relevant to note the sections under which the accused was charged.
Section 3 of POCSO Act, 2012 read thus Penetrative Sexual Assault:-(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
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Section 4 of POCSO Act, 2012 read thus Punishment for penetrative sexual assault:- [(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with 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. (3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.
18.In the light of above provisions, this court has scrutinized the evidence carefully placed on record. PW1 is the mother of the victim. She deposed that the victim/LW2 is her son, and LW3/Raj Tilak is her husband. She also identified the accused, who was present
in the court hall. As per evidence of PW1 she is a resident of Goutham Nagar and working
as a laborer in a company. She has two sons and one daughter. She leaves to work at 08:00 AM and returns at 05:00 PM. She deposed that the offence took place on 26.09.2022. That on the said day, she left the house at 08:00 AM for work, and her husband left at 09:00 AM. Since, it was Daseera vacation, the victim was at home along with her other son and daughter. PW1 deposed that her workplace is near her residence.
That after 11:00 AM, the victim, along with her other son and daughter, came to the company where she is working and informed her that in their absence, the accused took the victim near the Ferozguda railway track by offering him a chocolate and raped him.
PW1 immediately called her husband and informed him about the incident. Then, her husband instructed her to go to the police station, and that he would meet her there. PW1, along with the victim, went to the police station and lodged the complaint at about 12:30
PM after her husband came and she gave the information to the police in Hindi, and they prepared the complaint. After reading the complaint to her, she confirmed that it was prepared as per her information and signed by her. Ex.P1 is the said complaint. PW1 deposed that the police then sent the victim for a medical examination, and the doctors examined the victim in her presence. She deposed that both she and the accused, both are from Bihar and the accused's house is near to their house, which is how she knows
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the accused. She added that the accused occasionally visited their house and played with the children.
19.During her cross-examination, She deposed that she has been residing in
Hyderabad for more than 10 years and that they have been living in Balanagar from the beginning. She deposed that she knows the residential house of the accused, which is situated in Gowtham Nagar. PW1 also deposed that she came to know about the offence based on the information given by the victim. She denied the suggestion that she do not know the accused. PW1 also denied the suggestion that the victim informed her about the offence at 12:00 noon, Further added that the victim informed her at 11:00 AM. She added that since the accused's house is situated beside her house, she knows the accused. PW1 denied the suggestion that she is deposing against the accused at the behest of the police or on their instructions. She denied the suggestion that she do not know the accused and that she gave the name of the accused in the complaint on the instructions of the police.
Further, she denied the suggestion that the victim was not taken by the accused from her house.
20.It is held that the evidence of PW1 clearly goes to establish that she came to known about the offence on the information given by the victim. However, it is pertinent to note that immediately after receiving the information, she filed the Ex.P1 at 12:30 hours, which establishes that there is no delay by Pw1 in filing the complaint against the accused, hence, it rules out and proves that the said information is free from any doubt and seeking swift action to be taken against the accused. The investigating officer who received the complaint on 26.09.2022 from PW1 immediately registered a case in crime No.452 of 2022 under section 377 IPC and section 3 read with 4 of POSCO Act, 2012 and took up the
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investigation. Hence, basing upon Ex.P1 the investigation was set into motion by the investigating officer. It is also held that, there are no suggestions from the defence to discard or disbelieve the version of PW1 that Ex.P1 was filed against the accused keeping in view any grudges against the accused or even due to any enmity. Hence, the evidence of PW1 establishes the relationship between PW1 and PW2 as well as the filing of Ex.P1 and the fact that the accused lives near the house of PW1. It is also pertinent to note it is not denied by the defence suggesting that on the alleged date no offence has took place against the victim. Therefore, it can be safely be held that the evidence of PW1 is having sufficient credence to believe the version of PW1.
21.PW2 is the victim and his evidence establishes that PW1 is his mother and LW3 as is his father. Further, he has one brother and one sister and that he is studying in the 1st class. He has identified the accused, who is standing in the court hall, as Barkat Ali and stated that his house is near to their house. PW2 in his evidence categorically stated that about one year ago, during the vacation, when he was alone at home and while his brother and sister went to play and his parents went to work at the company, then, at around 10:00 AM, the accused came to their house and took him to the room near the railway track. There, the accused removed his pants and inserted his private part between his hips from behind, causing pain and making him cry. Then, the accused brought him back to his house, where his brother and sister were present. Then, he/victim informed his brother about what the accused did to him. That along with his brother, he went to the place where their mother was working and complained to his mother about the incident.
After which, his mother made a phone call to the police. Then, he along with his parents, went to the police station, and he narrated to the Police how the accused committed the offence against him. Subsequently, he along with his mother, went to the hospital where
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the doctor examined him. He also gave a statement in the court thereafter, he also identified the photos shown to him as the place to which the accused had taken him and committed the offence. Ex.P2 consists of the said three photographs along with the CD.
22.During his cross-examination, he denied the suggestion that on the date of the offence, he was playing outside his house with other kids and that he did not see who committed the offence against him. He reiterated that he saw who committed the offence when he inserted his private part between his hips. PW2 admitted that the accused was wearing a white shirt on the date of the offence. He denied the suggestion that the police told him the name of the accused in the case and that he do not know the accused. He also denied the suggestion that the accused did not commit the offence against him.
23.From the evidence of PW2 it can be held that the accused tried to elicit that the victim did not see him doing the offence but the victim categorically deposed that it is the accused who has committed the offence against him and moreover he has elucidated that how the accused has inserted between his hips.
24.It is considered that the accused mind is filled with so much of lust that he has first of all committed the offence against a minor boy and secondly, by going against the norms of the nature. It is held that the POCSO Act, 2012 is a gender neutral Act brought into existence to protect the child, which means girl and boy. It is further held that keeping in view the offences are raising against the minor’s the legislature, has designed and enacted the POCSO Act, 2012 in such a way that the offences, which take place against any gender needs to be curbed and the persons committing such offences have to be punished rigorously.
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25.It is considered further from the evidence of PW2, that he has identified the accused correctly before the court and moreover he also stated that the accused was wearing a white shirt on the date of offence, which is also not denied by the defence. It is necessary to note that as on the date of offence, the age of accused is approximately 20 - 21 years, whereas, the age of the victim is just five years only. Hence, keeping in view the age of the victim and the situation he has undergone at the time of offence, there may be some instances which victim may tend to forget, therefore the evidence cannot be set aside due to some minor discrepancies. Thus, PW2 herein is not only a victim as well he is an injured person and his evidence clearly goes to establish that the accused has committed the offence against him.
26.In addition to above, the evidence of PW2 is read along with PW9 (Civil Assistant
Surgeon), it shows that PW9 examined the victim and observed that there is red colour contusion around the buttocks and around anal orifice along with edema that she even collected the anal swabs of the victim and the clothes and sent them to forensic examination. Further, she gave the opinion that there is no semen and spermatozoa detected. However, in the final opinion the victim findings or consistent with sexual intercourse with force and anally. Ex.P6 to Ex.P8 are marked and MO4 and MO5 are also marked. PW9 also was cross-examined extensively about the procedure adopted in conducting the examination and as well as the collection of the samples to forward them to the FSL. It is considered that the defence could not discard that the victim was not examined by PW9. Further, it shows that the victim was examined on the same day of the offence at night 09:00Pm by PW9. Therefore, it is held that the said PW9 could able to observe the red contusion around the buttocks and anal orifice and edema. Therefore, Exs
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P6 to P8 establishes and strengthens the evidence of PW2 that the accused has inserted his private part between the victim/PW2 hip from behind. Moreover, PW2 also stated that he felt pain and started crying, which further establishes that the accused forcefully inserted his private part into the anal of the victim, which resulting in pain and contusion at the anal orifice. Further, it is also pertinent to note that the age of the victim mentioned as is five years and the accused aged 20-21 years, hence the question of enmity between them in order to depose falsely against the accused does not arise. Apart from that, the victim also shown the place to the police where the accused committed offence against him, which is photographed and got marked Ex.P2. The cross-examination of PW2 also shows that the said Ex.P2 is not challenged by the defence either denying or suggesting that the said Ex.P2 is not the place of offence. Hence, the evidence of PW2 is free from any doubt and as well as does not have any inconsistencies or contradictions. Therefore, this court relies on oral testimony of PW2 and Ex.P2, Ex. P6 to Ex. P8.
27.PW3-Sri M. Sushanth, deposed that he is a resident of Gowthamnagar, Balanagar, and previously had a private job. He knows LW3/father of the victim, as he belongs to his colony. LW3 has three children and he is an employee in Balanagar, as is PW1. PW3 also knows the victim, who is the younger son of LW3. The accused was new to the colony where they reside and is also a resident of a nearby colony. PW3 further deposed that
on 26.09.2022, between 10:00 AM and 10:30 AM, he was getting ready to go to his
office when he observed the accused taking the victim along with him. He
questioned the accused about where he was taking the victim, as the accused was
new to their colony. The accused, in return, questioned PW3 about who he was to
ask and did not reply to his question. PW3 then left for his office and returned in the
evening. PW3 further deposed that he came to know from the mother of the
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victim/PW1, that the accused had took the victim near by a room at Ferozguda
railway track and committed penetrative sexual assault against the victim from the back side. When, PW3 asked PW1 whether she gave any complaint, to which she replied that she gave compliant. Two days prior to the incident, PW3 seen the accused playing with the children in his locality, including the victim. PW3 deposed that he could identify the accused if he see him and identified the accused who is present in the court hall.
28.During his cross-examination, PW3 deposed that he knows the accused came to their colony recently, about two months before the incident. He do not know the address details of the accused. PW3's job timings are from 8:00 AM to 5:00 PM. He admitted that he came to know about the alleged offence through the mother of the victim in the evening. PW3 deposed that about two days before the date of the offence, the accused was in front of his house playing with his children, including the victim. He asked the accused who he was, to which the accused replied that it was not necessary for him to give his details. The mother of the victim voluntarily informed him about the offence committed against the victim, but he did not enquire about him. PW3 admitted that he did not witness the alleged offence but only came to know about the offence through the mother of the victim. PW3 denied the suggestion that he is having disputes with the accused and he is therefore deposing falsely.
29. It is held from the evidence of PW3 that, he has only witnessed the accused taking the victim along with him, but did not witness the indicent. However, it is considered that the prosecution in order to establish that it is the accused who took the victim along with him has examined PW3. Further, it is also pertinent to note that the defence though tried to elicit from PW3 that he did not witness the accused taking the victim, but the same was denied by him. It is held that the job timings of Pw3 is from morning 08:00Am to 05:00PM.
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However, in his chief examination he specifically stated that on 26.09.2022 in between 10:00Am to 10:30 AM while he was getting ready to office, then he observed the accused taking the victim along with him which means that day he was going to his work at 10.00am and not as per his usual office timing. Moreover, the accused being new to the colony as he came there two months prior to the incident therefore, the accused was easily identifiable by PW3. Apart from that the accused was also seen two day before the alleged incident, when he was playing with children in-front of the house along with the victim. Hence, the evidence of PW3 can be believable. The defence suggested that due to the disputes PW3 is deposing falsely against him. It is held that the question of having disputes between Pw3 and the accused do not arise because firstly the accused came to their colony recently i.e. about two months back prior to the incident. Secondly, the accused and PW3 are nowhere related with each others to have any serious disputes between them. It is further held that even the defence also did not assign or suggest any valid reasons or stated what disputes are there between both of them to depose falsely against the accused by PW3. Hence, in view of the facts and circumstances the evidence of PW3 since free from any doubt therefore held that PW3 has witnessed the accused taking the victim along with him on the alleged date of incident.
30.PW4 is Sri S. Akash, he deposed that he is a resident of Gowthamnagar,
Ferozguda, Balanagar. He knows LW3/father of the victim, as he belongs to his colony. He also knows PW1 and PW2. LW3 is an employee in Balanagar, and so is PW1. PW1 and
LW3 are blessed with three children, all three are studying in XXX Convent School,
Balanagar. PW4 deposed that he do not know Barkath Ali. PW4 further deposed that on 26.09.2022, the father of the victim informed him that a person named Barkath Ali taken the victim, his son, to the Ferozguda railway track, removed the victim's pants, and
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committed rape. That four days before the incident, PW4 had seen Barkath Ali playing with the children, including the victim. He deposed that he could identify Barkath Ali if he see him and he identified the accused who was present in the court hall.
31.The evidence of PW4 shows that he has seen the accused for the first time 4 to 5 days before the date of the incident, however, he do not know the details of the accused.
He admitted that he first saw the accused but, he do not know his name and he came to know the name of the accused when the father of the victim told him. He admitted, that through the father of the victim he came to know that the alleged incident took place near his house. Further, admitted that, he did not see the accused on the date of the offence and also he did not witness the alleged offence but only came to know about it through the father of the victim. It is considered that the prosecution could able to establish to an extent that the accused was playing along with the children. Thus, it can presumed that the accused was trying to have friendly relationship with the children of the locality. Further establishes that he was trying to execute his plan prior to three to four days before the date of offence. However, It is no doubt that as PW4 has not witnessed the accused taking the victim along with him but the evidence of PW2 and PW3 clearly establishes that the motive of the accused was that he wanted to full his lust.
32.PW5 evidence is perused by this court and observed that he is a hearsay witness and his role is only to the extent of seeing the accused on one or two occasions. However, the witness not stated where he has seen the accused. Further, he did not even witness the alleged incident.
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33.PW6 is the owner of the King Star Bakery at Gowthamnagar, where the accused is working. He know the accused 15 days before the date of the incident as he used to work sometimes in his bakery shop. The accused is a resident of Gowthamnagar. He came to know through the police that the accused has committed an offence the previous day and was therefore arrested. The accused was apprehended at 10:00 AM at his shop. The police informed that the accused had committed an offence against the victim, hence he arrested. The accused did not come to his shop on the date of the incident. He deposed that he could identify the accused if shown to him and identified the accused who was present in the court that day. It is held that it is not denied by the defence that Pw6 is not the owner of King star bakery situated at Gowthamnagar. Further, as per the evidence of
PW6 the prosecution could able to establish that as on the date of incident that the accused did not come to his shop, which establishes that the accused was with the victim in his room, where the offence place.
34.PW7-Sri MD Lathif, deposed that he is a resident of Gowthamnagar. He got acquainted with Dhop Singh on the date of the panchanama proceedings. That on 26.09.2022, the police conducted a panchanama at a room near the Ferozguda railway track in their presence. The panchanama was conducted in their presence, and they were asked to sign it. The police also prepared a rough sketch showing the room and the railway track and obtained their signatures. PW7 identified his signature on the scene of the offence panchanama and the rough sketch. The contents of the panchanama were scribed in Telugu in their presence. He identified the photographs in Ex.P2 as the room located at the railway track. Ex.P3 is the Crime Detail Form, and Ex.P4 is the rough sketch.
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35.The evidence of PW7 coupled with Ex.P2 reveals that the said room where the offence was committed is identified by the witness. Further in his presence the police
Balanagar have conducted the Ex.P3 and Ex.P4 at 13:00 hours ie.,01:00Pm and obtained their signatures. The cross examination of PW7 goes to suggest that the defence in order to discard the evidence of PW7 tried to elicit that he has no knowledge about the facts this case, but the said suggestion was denied.
36.PW8-Sri K. Sandeep, Junior Assistant deposed that he knows LW12/Mallela
Santhosh Kumar. That on 27.09.2022, the police at Balanagar conducted a panchanama in his presence and in the presence of LW12. He deposed that the accused confessed to the commission of offence in their presence. The accused confessed that about six months ago, he came to Hyderabad for his livelihood. He deposed that he is working as an assistant in a bakery and, due to insufficient income, he is staying in a railway room situated near the railway track. Other natives from Bihar are also staying with him in the room. The children of these natives, including the victim, got acquainted with the accused.
The accused committed sexual assault against the victim under the guise of playing with him. PW8 further deposed that on the morning of 26.09.2022, at 8:00 AM, the accused went to the house of the victim but returned to his room as the parents of the victim were present. At 10:30 AM on the same day, he went to the house of the victim and, on the pretext of purchasing chocolate, took the victim outside the house and to his room, where he committed sexual assault against the victim. When the victim cried, the accused consoled him and brought him back to his house. The accused also confessed that he removed the clothes of the victim. The clothes and cell phone of the accused were seized from the railway room. After the confession was recorded, the accused was brought to the police station. PW8 deposed that he can identify the seized clothes if shown to him. The
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clothes seized are a full-hand grey-colored T-shirt and blue-colored jeans, along with a black OPPO mobile phone. He identified the clothes shown to him in the court hall. He also identified the accused correctly, who is present in the court hall. The panchanama proceedings were typed, and his signatures were obtained. He further obtained his identified his signatures on the panchanama and the signature of LW12. Ex.P5 is the confession-cum-seizure panchanama. The material objects seized in his presence also contain his signatures along with LW12's. The said material objects are MO1 (full-hand ash-colored T-shirt), MO2 (blue-colored jeans), and MO3 (black OPPO mobile phone).
37.During his cross-examination, PW8 deposed that on the said date of the confession panchanama, while he was going to his office, the MRO called him at 10:00 AM and informed him that he should meet the SHO, Balanagar. Accordingly, at 10:30 AM, as per the directions of the MRO, he met the SHO, Balanagar. He admitted that he did not receive any phone call personally from the SHO, Balanagar, but only from the MRO. PW8 deposed that he never acted as a panch witness previously in any cases. He denied the suggestion that he acted as a panch witness in other criminal cases as well. He admitted that he acted as a panch witness in SC No. 118 of 2019. PW8 did not remember in which vehicle he went to the SHO, Balanagar Police Station. When he reached the police station, the Circle Inspector was present. The Circle Inspector informed him about the case and asked him to take the accused aside and question him in this regard. He has no idea about the direction in which the Balanagar Police Station is facing. He deposed that the
Balanagar Police Station consists only of a ground floor. The accused was present in the police station but not in the lockup when he went there. He did not have any idea about the number of rooms in the police station or in which room the accused was present. PW8 deposed that the accused is a Hindi-speaking person and that he has no idea whether the
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accused is educated or not. He did not verify whether the accused had any injuries on his body. He did not remember the dress the accused was wearing on the date of the confession. He remembered the date of joining his office. When he went inside the police station, the staff, including the Circle Inspector and police constables were present. He denied the suggestion that he did not visit the Balanagar Police Station and he did not record the confession panchanama, and that he is now deposing falsely in the court.
38.PW8 deposed that the accused was questioned by him inside the police station in the walking area. He and LW12 were alone present when the accused confessed before them. He deposed that he do not know how to read and write Hindi but can speak Hindi language. The accused is residing in Gowthamnagar in a railway room near the railway track. The railway room is situated on the ground floor, and there are no other floors in the railway room. He do not know how many rooms are there. PW8 deposed that the accused went inside the room and brought the material objects 1 and 2. They went near the railway room between 10:30 AM and 11:00 AM. He, and the Circle Inspector, constables, and the accused went to the railway room. The Circle Inspector's name is Sri Bhaskar. He do not know the names of the constables. He do not know towards which side of the track the railway room is situated or the directions and nearby surroundings. The building color of the railway room is light orange. PW8 admitted that similar pattern of dress materials of
Mos.1 and 2 are available in the market. He put five signatures without a date. The clothes which were seized by the police were in a cover, and he do not know what is the cover. He denied the suggestion that the police obtained his signatures and that he did not visit the police station and did not record the confession of the accused. He also denied the suggestion that the police never seized Mos.1 to 3 in his presence and that his signatures were obtained subsequently. He deposed that he returned to the police station from the
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railway room after the seizure of Mos.1 to 3 and had stated the same in his panchanama proceedings as well. PW8 admitted that he went to the police station without written permission from the MRO. He denied the suggestion that the MRO did not give permission orally to act as a panch witness in this case. He deposed that he do not know that as a government servant, he should not act as a panch witness without written authority. He admitted that the time of concluding the panchanama proceedings is not mentioned in
Ex.P5.
39.It is held that the evidence PW8 goes to establish that the seizure of MO1 to MO3 from the place of offence. Further it establishes that the proceedings are conducted in the presence of PW8 by the SHO Balanagar PS. It is held that the accused can speak Hindi language and as well as PW8 also can speak Hindi language therefore, the case of the defence that the proceedings of the panchanama or not understood by the accused. It is also held that the confession panchanama in the present case was recorded by the Police, however, it is settled law that confession before the police is inadmissible in law. However, the said seizure proceedings were also conducted in the presence of PW8. Therefore, the seizure panchanama marked as Ex.P5 is relied by this court.
40.PW10-Sri M. Lavanya, Sub-Inspector of Police, deposed that she is currently working as a Sub-Inspector of Police at PS Medchal since February 2022. She is in charge of the Bharosa Center at Medchal from August 2022 to March 2023. At the request of the
SHO of PS Balanagar, the victim was sent to the Bharosa Center for recording his statement under Section 161 Cr.P.C. She deposed that in the present case, she recorded the statement of the victim/boy aged 6 years, in the presence of his mother. The victim
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stated that one person had sexually assaulted him by penetrating his anus. After recording the statement, she forwarded it to the SHO.
41.During her cross-examination, PW10 deposed that when she was at the Bharosa
Center at Medchal, she received a requisition for recording the statement of the victim/boy.
The victim stated before her in Hindi, and the same contents were written in Telugu. She had seen the FIR and the request of the SHO but not any identity card of the victim. She denied the suggestion that the victim did not state anything before her and that she had recorded the statement at the behest of the SHO, Balanagar.
42.The evidence of PW10 establishes that the statement of the victim is examined and recorded by PW10 as per section 24 of POCSO Act, 2012. Further, the mother of the victim was also present as per provided under section 26 of POCSO Act, 2012. Hence, the evidence of PW10 establishes that the statement of Pw2 recorded as per the procedure laid down in the POCSO Act, 2012.
43.Pw11 evidence shows that on 27.09.2022 he has conduct a potency test of
Bharkath Ali and rendered his opinion based on the general, physical, and local examination of the individual and found nothing to suggest that he is not capable of performing a sexual act. He also determined the age of the aforementioned person. Ex.P9 is the potency certificate of the accused, and Ex.P10 is the age determination certificate.
He followed a three-type procedure, which includes 1) General physical examination, 2)
Dental examination, and 3) Radiological examination, to ascertain the age of the accused.
According to his opinion, the age of the accused is approximately 20 to 21 years. He handed over his opinion to the police at Balanagar. The defence did not deny that Ex.P9
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and Ex.P10 certificate are issued by PW11. Further, the said exhibits Ex.P9 to Ex.P10 clearly shows the age of the aged 20-21 years and also conducted general physical examination and dental examination and rendered the age certificate as 22-21 years.
However, the accused did not deny the age shown in Ex.P10 nor denied that he is potent.
Hence, the evidence of Pw11 is admissible in law, establishes that the accused is impotent enough to commit the offence against the victim
44.PW12-Sri Prashanth Goud is working in the Clues Team of Balanagar Division since 2020. His evidence establishes that on 26.09.2022 at 01:00 PM, he received a call from LW22/K. Bhaskar, Inspector of Police, Balanagar, to come to the railway track of
Ferozguda and accordingly, he along with LW17, who works as a photographer for
Balanagar Division, reached the directed location. He observed one room located near the railway track of Ferozguda. Then in the presence of the Investigating Officer, he observed the scene, and took the photographs and prepared a rough sketch of the scene of the offence and handed it over to the Circle Inspector of Balanagar PS. He was examined, and his statement was also recorded. The cross examination of PW12 shows that the prosecution has established that through LW22 the scene of offence and rough sketch was got prepared. Further, it also goes to establish that the defence failed to elicit any material discrepancies which could lead to raise any adverse inference.
45.PW13-Sri V. Anil, ARPC, photographer. He deposed that he has been working in the
Clues Team of Balanagar Division since November 2020. He knows LW16, PW12, as they both work in the same Clues Team Department. PW13 deposed that on 26.09.2022 at 01:00 PM, PW12 received a call from the Balanagar Circle Inspector, asking him and
PW12 to come to the railway track of Ferozguda, which is the scene of offence.
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Accordingly, he and PW12 reached the directed location. There, he collected photographs of the scene of offence using his Canon camera. He was examined, and his statement was also recorded. He identified the photographs, which were marked as Ex.P2, that were taken by him.
46.It is held that from the evidence of PW13 it goes to show that he corroborated with the evidence PW12. It is also held that the evidence of PW13 shows that the defence could not elicit any material discrepancies or any contradictions between PW12 and
PW13. Hence the evidence of PW12 and PW13 is relied by this court.
47.PW14-Sri P. Raju, PC-11196, deposed that he has been working as a Police
Constable bearing No. 11196 at PS Balanagar since 15.11.2020. PW14 deposed that on 27.09.2022 at 10:00 AM, as per the directions of LW22, he and M. Mukund,
HG-1654/LW19, went to Kingstar Bakery to bring the accused, who was working as a helper. He and LW19 reached there and, on inquiry, came to know about the accused.
They then brought the accused to PS Balanagar and produced him before LW22, the
Circle Inspector. Further his statement was also recorded by LW22. The accused is the person whom he produced before LW22.
48.During his cross-examination, PW14 deposed that Kingstar Bakery is located 15 minutes away from PS Balanagar. At around 10:00-10:15 AM, the bakery owner (PW6) and the accused were present when he asked who Bharkath Ali and the accused came forward. LW22 provided all the details about Bharkath Ali. The accused was standing outside when he reached the bakery by 10:20 AM, they returned to the police station. He denied the suggestion that he is deposing falsely.
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49.The evidence of PW14 establishes that the accused was arrested on 27.09.2022 at 10.00am as per the directions of LW22/PW15. It shows that the accused was arrested from King star bakery at around 10.15am. From there he was brought to the police stations and produced before PW15. Thus, the evidence of PW14 elaborates with the evidence of
PW6 in respect of the apprehension of the accused at 10.00 am at his shop. The defence did not deny the arrest of the accused except putting some formal suggestions.
50.PW15-Sri. K. Bhasker, Inspector of Police. He deposed that on 26.09.2022, at 12:30 hours, he received a complaint from LW1/Kanchana Devi. Based on the said complaint, he registered a case in Crime No. 452 of 2022 under Section 377 IPC and
Section 3 read with 4 of the POCSO Act, 2012, and commenced the investigation. He dispatched the FIR copies to the concerned sections. During the course of the investigation, he examined and recorded the detailed statement of LW1 along with LW16 and LW17, visited the scene of offence situated at Ferozguda Railway Track, Balanagar.
He secured two panchas, LW9/Boda Deep Singh and LW10/Md. Latheef, and prepared a scene of offence panchanama and rough sketch in their presence, using the Crime Details
Form. He further deposed that he sent a request to the Bharosa Centre, Medchal, for recording the victim boy's statement. LW15/Smt. Lavanya, Women SI, examined and recorded the victim boy's statement. He then sent a requisition to LW13/Dr. Seemen, Lady
Medical Officer, Government Hospital, Malkajgiri, for a medical examination of the victim boy. She preserved the anal swabs and the victim boy's clothes (a pink shirt and blue pants). He also examined LW3/victim's father, and LW4/Sushanth, LW5/Akash,
LW6/Ramchander, LW7/Nooka Raju, and LW8/Rizwan Khan, and recorded their detailed statements. PW15 further deposed that on 27.09.2022, at 10:00 hours, LW18/Raju and
LW19/Mukund apprehended the accused and produced him before him. He secured two
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mediators, LW11 and LW12, and conducted a confessional-cum-seizure panchanama of the accused, seizing an ash-colored T-shirt, blue jeans, and an Oppo mobile phone from the accused's room. He then sent the accused for age determination and potency tests.
Following this, he arrested the accused and sent him to judicial remand. He also deposed that he filed requisition before the XIII AMM, Kukatpally, for recording the victim boy's statement under Section 164 Cr.P.C. He sent all the seized materials to the FSL. After collecting all the reports, he filed the charge sheet against the accused for offences under
Section 377 IPC and Section 3 read with 4 of the POCSO Act. Further he identified the
Ex.P11 is the FIR dated 26.09.2022 and Ex.P12 is the 164 Cr.P.C statement of the victim.
51.During his cross-examination, PW15 deposed that the victim's mother came to the police station to lodge the report at approximately 12:20 PM, and the FIR, based on that report, was registered at 12:30 PM. He admitted that the charge sheet did not specify how or in what manner the accused taken the victim along with him. He admitted that he did not examined any school authority as witness in the case. He admitted that the name of the company and the working hours of the victim's mother and father were not stated in the charge sheet. He also admitted that the name of the police constable who escorted the victim to the Bharosa Centre was not mentioned in the charge sheet. He further admitted that he did not mentioned in the charge sheet that the accused was the complainant's neighbor and that they had known him very well for the past seven years. He admitted that the accused was arrested on 27.09.2022, at 10:00 AM at Ferozguda, Balanagar. He admitted that the charge sheet stated the accused was arrested at King's Bakery,
Gowthamnagar, at Ferozguda. He admitted that the custody petition dated 04.10.2022, stated that the accused was arrested in his room at 10:00 AM on 27.09.2022. He admitted that the inquiry did not elicit how many times the accused has visited and observed the
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victim in the common area. He deposed that he did not examine any railway authorities of the Ferozguda railway station because it was an abandoned place. He admitted that the mobile number of the VRA, who was present during the confession and seizure panchanama, was not mentioned in the charge sheet. He deposed that the accused's innerwear was not seized because it was not available, and only the materials presented in court were seized. Further, he denied the suggestion that he has conducted a table investigation and was giving false evidence.
52.PW15 recalled as per Crl.MP.No.82 of 2024 to mark the victim's date of birth deoposed that he submitted the victim's birth certificate in the present case to demonstrate that the victim was a minor on the date of the offense. He deposed that the document had not been filed along with the charge sheet, and therefore, it was received as Ex.P13, the victim's birth certificate. During further cross-examination, PW15 deposed that he had filed the charge sheet on 25.10.2022. He admitted that he had not mentioned Ex.P13 in the charge sheet. He admitted that age determination has not been conducted on the victim.
However, he deposed that Ex.P13 has been subsequently traced and submitted. He denied the suggestion that he has not followed the procedure and filed a false charge sheet against the accused. He deposed that Ex.P13 was issued by Sadar Hospital, Bojpur, and that it has been issued on 19.06.2023.
53.The evidence of PW15 goes to show that the defence tried to elicit that the arrest of the accused was not made as shown in the charge-sheet. It is held that there is no dispute that the accused is apprehended at Kings bakery goutham Nagar, Ferozguda and from there he was brought to the police station and subsequently after completion of the formalities, he was arrested. It is considered that the defence did not take any steps in the initial stage to challenge the arrest of the accused. Hence except mere suggestions, there
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is no valid reasons shown during the cross-examination of PW15 that the arrest of the accused is not as per the procedure. It is further held that the defence also tried to elicite and discard the evidence that the railway authorities are not examined in the present case.
However, as the railway station of Ferozguda is an abandoned place therefore, the investigating officer that he did not examine any of the railway authorities. Further, the father and mother company timings are not mentioned as well as the name of the company is not mentioned. In this regard, the evidence of PW1 is perused the accused did not suggest the same to the mother of the victim and therefore, this is the opinion of this court that when it is not disputed by the defence that the mother and father of the victim are working then not mentioning the name of the company and its timings by PW15 is only a minor lacunae. Further it is held that Ex. P13 was subsequently filed by PW15 and in this regard vide Crl.M.P. No. 82/2024, the said document was received the defence did not challenged the orders passed by this court and proceeded to the cross-examination.
Therefore, the question that the said document is not filed along with the charge-sheet again cannot be challenged during the cross-examination. Moreover PW15 has assigned reason why Ex. P13 is filed at a subsequent stage i.e., it is filed after it was traced out.
Hence the said Ex. P13 which was issued by the Sardar Hospital, Bhojpur on 19.06.2023 since not challenged by the defence nor the validity of the document is questioned.
Therefore the said defence subsequently cannot challenge the same in any manner.
54.It is further held that as per section 29 and section 30 of POCSO Act , any offences committed or attempted to be committed by a person for the offences under section 3, 5, 7 and 9 of this Act, then the special court shall presume that such person has committed or abetted or attempted to commit the offence unless the contrary is proved.
55.In the present case the accused is alleged of the offence under section 3 r/w section 4 of POCSO Act and therefore, this court is entitled to raise the presumption
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against the accused that he has committed the offence. Further, the burden to establish the contrary lies upon the accused which in this case, the accused has failed to place any material before this court to set aside the presumption that he has committed the offence against the victim is not established by him. Further, the accused also failed to place any defence before this court to prove the fact that he had no such mental state with respect to the Act charged as an offence by the prosecution.
56.Thus, in view of the reasons discussed above and with the help of Ex. P1 to P13 and the oral evidence of Pws 1 to 15 and Mos 1 to 5, this court is of the opinion that the prosecution has established the offence under section 3 r/w 4 of POCSO Act against the accused beyond all the reasonable doubts. Hence point no. 2 is answered in favour of the prosecution.
Point No.3 To What relief:
57.In the result, the accused is found guilty for the offences under section 3 read with 4 of POCSO Act, with which, he is charged, and he is accordingly convicted for the said offence under section 235(2) of the Code of Criminal Procedure.
The Mos 1 to 5 shall be destroyed after expiry of appeal time as per the procedure laid down.
Typed to my dictation by the steno, corrected and pronounced by me in the open Court, on this the 28th day of March, 2025.
Sd/-
FAC:Fast Track Special Judge for Expeditious Trial and Disposal of Rape and POCSO Act cases, Medchal-Malkajgiri District at Kukatpally.
Questionnaire on the Quantum of Sentence
The accused is questioned with regard to the quantum of sentence to be imposed on him to which the accused stated that he has not committed any offence and he is
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having family and to take a lenient view. Taking into view the gravity of the offence committed by the accused herein against a minor a lenient view cannot be taken against the accused.
Further, the offence committed by the accused is of heinous in nature i.e., the accused took the advantage of the innocence of the victim and sexually assaulted him, which leaves an injury on the mind of the victim forever. Therefore, the act of accused cannot be viewed leniently and deserves a severe punishment. Since he has committed sexual assault. Hence, the benefits under section 360 Cr.PC or P.O Act cannot be extended the accused.
In the result the accused is found guilty for the offences under Section 3 read with
Section 4 of POCSO Act, 2012.
(a) The accused is sentenced to undergo for offence under section 3 read with 4(2) of POCSO ACT, 2012 with Rigorous Imprisonment for a term of 20 years (Twenty Years) and pay fine of Rs.10,000/- (Rupees Ten Thousand Only) and in default of payment of fine he shall undergo Simple Imprisonment for a period of six months.
The Accused is informed regarding the right of appeal and free copy of Judgment is handed over to the accused.
The remand period of the accused from 27.09.2022 to till date i.e. 28.03.2025 (2 years 6 months 1 day) shall be set off under section 428 of Cr.P.C. The accused is informed that if he does not have capacity to engage an advocate to prefer an appeal legal aid can be provided to him in case if he intends to prefer an appeal.
As a measure of some help to the victim boy, as he has undergone lot of mental trauma, pain, agony and hardship, this court is of the opinion that the victim boy is entitled
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for compensation of Rs.6,00,000/- (Rupees Six Lakhs Only) as per sub-Section (8) of
Section 33 of POCSO Act,2012 and also as per Rule 9(3) sub-rule(i) of the POCSO Act, 2012. The DLSA authorities are hereby requested to initiate necessary steps to deposit the said compensation amount into the bank account of the victim boy and make it available for him to meet his expenses and also to look after his welfare and other appropriate requirements needed by him.
Sd/-
FAC:Fast Track Special Judge for Expeditious Trial and Disposal of Rape and POCSO Act cases, Medchal-Malkajgiri District at Kukatpally.
APPENDIX OF EVIDENCE
(Witnesses examined)
For the prosecution:
PW1 : Mother of the victim. PW2 : Victim PW3 : Sri. M. Sushanth PW4 : Sri. S. Akash, Software Consultancy. PW5 : Sri. B. Ramachandraiah, Kiranshop owner. PW6 : Sri. Rizwankhan, Kingstar bakery owner. PW7: Sri. M.D. Lathif, Driver. PW8: Sri. K. Sandeep, Junior Assistant. PW9: Dr. Sarah Seemeen, Civil Assistant Surgeon. PW10: Sri. M. Lavanya, Sub-Inspector of Police. PW11: Sri. K. Venkata Nagaraju, Assistant Professor. PW12: Sri. Prashanth Goud, Clues team incharge. PW13: Sri V. Anil, ARPC, Photographer. PW14: Sri. B. Raju, Police Constable. PC No.11196. PW15: Sri. K. Bhasker, Inspector of Police, CTC Cyberabad.
EXHIBITS MARKED
For the prosecution:
Ex.P1 : Complaint. Ex.P2 : 3Nos. Photographs along with CD. Ex.P3 : Crime details form. Ex.P4 : Rough sketch.
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Ex.P5 : Confession cum seizure panchanama. Ex.P6: Letter of Requisition. Ex.P7: Report of the FSL. Ex.P8: Opinion based on the clinical findings and report of FSL. Ex.P9: Potency certificate of the accused. Ex.P10: Age determination certificate. Ex.P11: FIR. Ex.P12 : 164 Cr.P.C statement of the victim. Ex.P13 : Birth certificate of the victim.
For the defence: -Nil-
MATERIAL OBJECTS MARKED
MO1 : Full Hand Ash Colour T-Shirt.
MO2 : Blue Colour Jeans.
MO3 : Black colour OPPO Mobile Phone.
MO4: Blue pant.
MO5: Pink-colored shirt.
Sd/-
FAC:Fast Track Special Judge for Expeditious Trial and Disposal of Rape and POCSO Act cases, Medchal-Malkajgiri District at Kukatpally.