1 OF 25 S.S.C.No. 85 OF 2017
IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT-CUM-
I-ADDITIONAL SESSIONS JUDGE, WARANGAL.
Wednesday, this the 01st day of September, 2021.
PRESENT:K.Jayakumar,
Special Judge for Trial of Cases under
Protection of Children from Sexual Offences Act-cum-I-Additional Sessions
Judge, Warangal.
SPL. SESSIONS CASE No.85 OF 2017 in Crime No.97 /2016 of P.S. Narsimhulapet.
1.Name and description of the :TheStateofTelangana complainant.represented by the Circle Inspector of Police, Thorrur.
2.Name and description of the : accusedA1:MidathapallyMadhu, S/o.Uppalaiah, Age: 20 years, Caste: Madiga, Occu: Auto Driver, R/o.Beerisettigudem of Narsimhulapet mandal.
A2:AluvalaLingaiah, S/o.Sriramulu, Age: 25 years, Caste: Kummari, Occu: Auto Driver, R/o.Vantadupula village of Narsimhulapet mandal.
A3:DarmarapuVenkanna, S/o.Iddaiah, Age: 34 years, Caste: Madiga, Occu: Car Driver, R/o.Cherlapalem of Thorrur mandal.
A4:DarmarapuKalyani, W/o.Venkanna, Age: 30 years, Caste: Madiga, Occu: Coolie, R/o.Cherlapalem of Thorrur mandal.
A5:DarmarapuNaresh, S/o.Venkanna, Age: 24 years, Caste: Madiga, Occu: Mason work, R/o.Gopalagiri, now at Sengicherla, Ghatkesar mandal of RR district.
A6:DarmarapuRenuka, W/o.Naresh, Age: 22 years, Caste: Madiga, Occu: Housewife, R/o.Gopalagirinowat Sengicherla, Ghatkesar mandal of RR district.
2 OF 25 S.S.C.No. 85 OF 2017
3.Offences charged:Offencespunishableunder Sec.366, 376(2)(i), 343, 506 of I.P.C., and Sec.3 r/w 4 of POCSO Act against A1; Sec.366A, 506 r/w 109 of I.P.C., Sec.3 r/w 4, Sec.16 r/w 17 of POCSO Act against A2; Sec.343, 506 r/w 109 of I.P.C., Sec.3 r/w 4 and Sec.16 r/w 17 of POCSO Act, against A3 to A6.
4.Plea of the accused:Pleaded not guilty.
5.Finding of the CourtMidathapally Madhu (A1) is found guilty for the charges under section 366, 376(2)(i), 343, 506 of I.P.C., and Sec.3 r/w 4 of POCSO Act. Accordingly, he is convicted for the said charges under section 235(2) of Cr.P.C. Aluvala Lingaiah (A2) is found guilty for the charge under section 366-AofI.P.C. Accordingly, he is convicted for the said charge under section 235(2) of Cr.P.C. A2 is found not guilty for the charge under section 506 r/w 109 of I.P.C., Sec. 3 r/w 4, Sec.16 r/w 17 of POCSO Act. Accordingly, he is acquitted for the said charges under section 235(1) of Cr.P.C. DarmarapuVenkanna(A3), DarmarapuKalyani(A4), Darmarapu Naresh(A5) and Darmarapu Renuka(A6) are found not guilty for the charges under section 343, 506, 109 of I.P.C., Sec.3 r/w 4 and Sec.16 r/w 17 of POCSO Act. Accordingly, they are acquitted for the said charges under section 235(1) of Cr.P.C. Accordingly, Midathapally Madhu(A1) is sentenced to undergo Rigorous Imprisonment for seven (07) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only) for the charge under Sec.376(2)(i) of I.P.C. Midathapally Madhu(A1), is further sentenced to undergo Rigorous Imprisonment for two 3 OF 25 S.S.C.No. 85 OF 2017 (02) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only) for the charge under Sec.366 of I.P.C. Accused No.1 is further sentenced to undergo Rigorous Imprisonment for seven (07) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only), in default to suffer Simple Imprisonment for fifteen (15) days for the charge under Sec. 3 r/w 4 of POCSO Act. He is further sentenced to undergo Rigorous Imprisonment for one (01) year for the charge under Sec.343 of I.P.C. A1 is further sentenced to undergo Rigorous Imprisonment for one (01) year for the charge under Sec.506 of I.P.C. Accused No.2 is sentenced to undergo Rigorous Imprisonment for two (02) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only), in default to suffer Simple Imprisonment for fifteen (15) days for the charge under Sec.366-A of I.P.C. As per the material on record, the victim/PW1 was put to severe mental trauma owing to the penetrative sexual assault committed by the Accused No.1 and in her young age 14 years, she was subjected to untold misery in coping up with her physical and mental health after the crime was committed. The victim and her family deserve suitable financial aid to restore her mental and physical health, to rehabilitate her and to overcome the stigma. Hence, thisCourtgrantsa compensation of Rs.3,00,000/- (Rupees Three Lakh Only) to the victim as provided under Sec.33(8) of POCSO Act read with 357A Cr.P.C. and Rule 9 of POCSO Rules, 2020. The said compensation shall be paid by the State Government from the 4 OF 25 S.S.C.No. 85 OF 2017 victim compensation fund within 30 days of receipt of copy of this Judgment. The District Legal Services Authority, Warangal, shallensurethatthe compensation so awarded is, in fact, paid to the victim. MO1 & 2, clothes shall be destroyed after appeal time is over. MO3, Auto bearing No.AP 20 Y 1953 which was entrusted to R.Naganna for interim custody is subject to the result of the appeal. MO4, Bike bearing No.TS 08 R/R 2766 which was entrusted to Darmarapu Naresh for interim custody is subject to the result of the appeal.
6.Conviction,sentenceor :Conviction against A1 & A2 acquittalAcquittal against A3 to A6.
7.Name of the Counsel for the :Sri M.Satyanarayana, prosecutionAddl.P.P.
8.Name of the Counsel for :Sri K.Krupakar Rao accusedCounsel for A1 to A6
This case is coming on 24-08-2021 for final hearing before me in the presence of Sri M.Satyanarayana, Additional Public Prosecutor for the State and of Sri K.Krupakar Rao, Counsel for A1 to A6; and having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
1. The case of the prosecution, as culled out from the charge sheet, in brief, is as follows: Victim (PW1) aged 14 years is the daughter of
PW2 and PW3. They belong to Beerishettygudem village of
Narsimhulapet mandal (as there is bar under the law to reveal or publish the names and identity of the victims and their parents in
POCSO cases, their names shall hereinafter be referred as victim and parents of the victim). As on the date of the offence which took place on 04-08-2016, she was studying 10th class in Sri Vignan High
School, Peddanagaram village of Narsimhulapet mandal. While the 5 OF 25 S.S.C.No. 85 OF 2017 victim was in 8th class, she used to go to school in the auto of
M.Madhu (A1) of their village. Taking advantage of his acquaintance with the victim, he (A1) used to follow her. Two months prior to the incident, Accused No.1 told the victim (PW1) that he is in love with her, for which she did not accept. She asked him not to follow her; otherwise she would inform to her parents.
However, he continued to follow her reiterating his proposal and even threatened her with dire consequences, if she failed to accept his love. As the victim (PW1) was not feeling well, she stayed back at home, on 04-08-2016. Her parents namely PW2 and PW3, while proceeding to their fields for work, asked her to bring lunch for them. On coming to know that the victim was alone at her home,
M.Madhu (A1) and A.Lingaiah (A2) went there in the auto of A2 at around 2:00 pm and asked her to come with them, for which she refused, but, A1 & A2, having threatened to kill her and her family members, forcibly got boarded her in the auto of A2, took her to
Chinthalabodu, outskirts of their village, from where A2 left with his auto leaving Accused No.1 and the victim (PW1). Accused No.1 paid deaf ear to the request of the victim to leave her and having insisted the victim to co-operate with him to fulfill his desire to have sex with her, he pushed her down and committed rape on her.
He wrongfully restrained the victim there till 6:30 pm. Thereafter, he (A1) brought her to the road, where they boarded a bus to
Thorrur, and from there, he took her to Cherlapalem village where he kept her in the house of D.Venkanna (A3) & D.Kalyani (A4). Even at the house of A3 & A4, the victim requested the Accused No.1 to 6 OF 25 S.S.C.No. 85 OF 2017 leave her. A3 & A4 also insisted the victim to love Accused No.1. On the next day morning, at the instance of Accused No.3, A1 & victim (PW1) boarded a bus to Hyderabad. A1 took the victim (PW1) to the house of his brother-in-law, D.Naresh (A5) at Hyderabad where he (A1) confined her in a room for three days. The victim did not take food for three days and in the morning hours on 08-08-2016, she fell down due to weakness. Consequently, due to fear of her health,
A1 & A5 brought her back on a bike to Thorrur bus stand and left her there.
2. On the strength of the report given by PW2, father of the victim girl (PW1), S.Ravinder (PW17), being the Head Constable of
Narsimhulapet P.S., initially registered a case against the Accused
No.1 for the offences punishable under Sec.363 and 366 of I.P.C., issued FIRs to all the concerned under Ex.P18, recorded the statements of PW2, PW3 and P.Somalingaiah (PW4), observed the scene of offence in the presence of panch witnesses under Ex.P19.
On 08-08-2016, victim (PW1) made her appearance before PW17, who in turn got recorded her statement through S.Geetha (PW15), a Woman Police Constable, later he altered and added Sec.376(2)
(i), 343, 506, 109 of I.P.C., and Sec.3 r/w 4 of Protection of Children from Sexual Offences Act. Thereafter, K.Sridhar Rao (PW19), being the Inspector of Police, Thorrur, took up further investigation in this case, got produced the victim girl before the medical officer where
Dr.P.Shashi Jyosthna (PW14) of Govt.CKM Maternity Hospital,
Warangal, examined her, collected vaginal swabs, smears, pubic hair, etc., for analysis and issued report under Ex.P13. The said 7 OF 25 S.S.C.No. 85 OF 2017
PW19, on 09-08-2016, observed the scene of offence, seized the clothes (MO1 & MO2) of the victim in the presence of panch witnesses, G.Srinivas (PW7) and D.Narayana (LW11), re-examined
PW1 to PW4and recorded their statements. He observed the scene of offence situated at Chinthalabodu in the presence of G.Venkanna (PW10) and D.Ramulu (PW11) under Ex.P21. He also observed the other scenes of offence situated at the houses of A3 & A4 at
Cherlapalem village in the presence of G.Sunil Chary (PW12) and
B.Chandraiah (LW15) under Ex.P22 and at the house of A5 & A6 at
Hyderabad in the presence of M.Ravindrachary (PW16) &
G.Venkateshwarlu (LW17) under Ex.P16. On 11-08-2016, the said
PW19 obtained the date of birth certificate of victim (PW1) from
M.Bikshamaiah (PW6), Head Master, Sri Vignan High School,
Peddanagaram village, arrested all the accused on 06-09-2016 at the house of the Accused No.1 at Beerishettygudem village in the presence of P.Ramachandraiah (PW13) and D.Venkanna (LW19) under Ex.P23, recorded their statements and seized the Auto bearing No.AP 20 Y 1953 (MO3) from A.Lingaiah (A2), Hero
Motorcycle bearing No. TS 08 TR 2766 (MO4) from D.Naresh (A5) in the presence of panch witnesses and produced the Accused No.1
before the medical officer where Dr.B.Sriramulu (LW21), examined
him and issued potency certificate. Thereafter, he sent all the accused for remand and filed charge sheet.
3. My learned predecessor took cognizance for the offences punishable under Sec.366, 376(2)(i), 343, 506 of I.P.C., and Sec.3 r/w 4 of
POCSO Act against A1; Sec.366A, 506 r/w 109 of I.P.C., Sec.3 r/w 4, 8 OF 25 S.S.C.No. 85 OF 2017
Sec.16 r/w 17 of POCSO Act against A2; Sec.343, 506 r/w 109 of
I.P.C., Sec.3 r/w 4 and Sec.16 r/w 17 of POCSO Act, against A3 to
A6, secured the presence of the accused, supplied them with the copies of documents as provided under Sec.207 of the Cr.P.C, examined them under Sec.228(1) Cr.P.C. After hearing the learned
Addl.P.P. and the learned defence counsel, the charges under
Sec.366, 376(2)(i)(n), 343, 506 of I.P.C., and Sec.3 r/w 4 of POCSO
Act against A1; Sec.366A, 506 r/w 109 of I.P.C., Sec.3 r/w 4, Sec.16 r/w 17 of POCSO Act against A2; Sec.343, 506 r/w 109 of I.P.C.,
Sec.3 r/w 4 and Sec.16 r/w 17 of POCSO Act, against A3 to A6, were framed, read over and explained to them in their language for which they pleaded not guilty and claimed to be tried.
4. In its attempt to prove the complicity of the accused, the prosecution has examined as many as 19 witnesses as PW1 to
PW19, marked Ex.P1 to Ex.P24 and MO1 to MO4.
5. After closure of the evidence on prosecution side, all the accused were examined under Sec.313 Cr.P.C. with reference to the incriminating material appearing against them in the evidence of the prosecution witnesses. They denied the evidence. They did not choose to adduce any evidence on their behalf.
6. Heard the arguments of the learned Addl.Public Prosecutor representing the State and the counsel representing the accused.
9 OF 25 S.S.C.No. 85 OF 2017
7. The points for determination are:
1. Whether the prosecution could prove that A1 (M.Madhu) kidnapped the victim girl aged 14 years, along with A2 (A.Lingaiah), committed rape on her, wrongfully confined and threatened her with dire consequences, as alleged by the prosecution punishable under Sec.366, 376(2)(i), 343, 506 of I.P.C., and Sec.3 r/w 4 of POCSO Act, beyond reasonable doubt?
2. Whether the prosecution could prove that A2 (A.Lingaiah) kidnapped the victim girl aged 14 years and threatened her with dire consequences along with A1, as alleged by the prosecution punishable under Sec.366A, 506, 109 of I.P.C., Sec.3 r/w 4, Sec.16 r/w 17 of POCSO Act, beyond reasonable doubt?
3. Whether the prosecution could prove that D.Venkanna (A3), D.Kalyani (A4), D.Naresh (A5) and D.Renuka (A6) confined the victim girl aged about 14 years and threatened her with dire consequences, as alleged by the prosecution punishable under Sec.343, 506, 109 of I.P.C., Sec.3 r/w 4 and Sec.16 r/w 17 of POCSO Act, beyond reasonable doubt?
8. Point Nos.1 to 3: To avoid repetition of discussion, all these three points are taken up for discussion. PW1 is the victim. PW2 &
PW3 are her parents. P.Somalingaiah (PW4), L.Venkanna (PW18) are the alleged eye witnesses to the incident of A1 & A2 taking the victim (PW1) in the auto. P.Ramesh (PW5) is the eye witness to the incident of A1 & A3 taking the victim girl (PW1) in an auto at
Thorrur. M.Bikshamaiah (PW6) is the Head Master of the school where PW1 was studying 10th class as on the date of the offence and author of Ex.P5. G.Srinivas Reddy (PW7) and M.Murali (PW8) are the panch witnesses for the observation of scene of offence at the house of PW2 & PW3. G.Venkanna (PW10) and D.Ramulu (PW11) are the panch witnesses for scene of offence at
Chinthalabodu vide Ex.P11. G.Suneel Chary (PW12) and Bachali
Chendraiah (LW15) are the panch witnesses for the observation of 10 OF 25 S.S.C.No. 85 OF 2017 the scene of offence at the house of A3 & A4 at Cherlapalem village vide Ex.P12. M.Ravindrachary (PW16) is one of the panch witnesses for the observation of scene of offence at the house of A5 at
Hyderabad vide Ex.P16 & Ex.P17. P.Ramachandraiah (PW13) is one of the mediators for the arrest of the accused. Dr.Shashi Jyosthna (PW14) is the doctor who has examined the victim and author of
Ex.P13 & Ex.P14. S.Geetha (PW15) is the Woman Constable who recorded Sec.161 Cr.P.C. statement of PW1. S.Ravinder (PW17) and
K.Sridhar (PW19) are the Investigating Officers.
9.Prosecution has projected P.Somalingaiah (PW4) and L.Venkanna (PW18) as the alleged eye witnesses to the incident where A1 & A2 allegedly kidnapped the victim girl from her house and took her in a auto towards Narsimhulapet Road around 2:00 pm on 04-08- 2016. During the trial, the prosecution failed to muster their support. PW4 & PW18, did not support the case of the prosecution.
During the trial, they did not speak anything against A1 & A2. As these two witnesses failed to stick on to the version allegedly narrated by them in their Sec.161 Cr.P.C. Statements to the Police, the prosecution declared them as hostile and cross examined them with the permission of the Court. Their cross examination, however, did not yield any result in bringing incriminating material against
A1 & A2. Thus, it can be said without hesitation that the evidence of PW4 & PW18 is not useful to the case of the prosecution to hold that A1 & A2 kidnapped the victim (PW1) from her house and took her in an auto on 04-08-2016.
11 OF 25 S.S.C.No. 85 OF 2017
10.Understandably, to prove that A1 & A3 were found taking the victim (PW1) in an auto towards Thorrur on 05-08-2016, the prosecution has examined one P.Ramesh as PW5. Even this witness also did not support the version put forth by the prosecution in toto. As this witness did not support the case of the prosecution as expected by it, the prosecution declared him as hostile and cross examined. In the cross examination, he denied to have stated
before the Police as in Ex.P4. Thus, it can be said that the evidence
of this witness PW5 is also not useful to the case of the prosecution.
11.The prosecution has projected G.Srinivas Reddy (PW7) &
M.Murali (PW8) as the alleged panch witnesses for the observation of scene of offence situated at the house of PW2 & PW3, parents of the victim (PW1), at Beerishettygudem village. Further, it projected
G.Venkanna (PW10) & D.Ramulu (PW11) as the alleged panch witnesses for the observation of scene of offence situated at
Chinthalabodu agriculture fields where A1 allegedly committed rape on the victim. However, all these four witnesses did not support the version put forth by the prosecution in toto. They turned hostile to the prosecution, completely. What all these witnesses deposed before this Court is that they merely signed on the panchanamas at the instance of the Police, to oblige them.
Thus, the evidence of PW7, PW8, PW10 and PW11 is not useful to the case of the prosecution. The prosecution further examined one
G.Sunil Chary (PW12), one of the panch witnesses for the observation of scene of offence located at the house of A3 & A4 at
Cherlapalem village. Even this witness did not support the version 12 OF 25 S.S.C.No. 85 OF 2017 put forth by the prosecution except admitting his signature on the
Crime Details Form-III, dated: 05-08-2016. He did not speak as to his taking part in the panchanama. Thus, the evidence of this witness is also not useful to the prosecution.
12.M.Ravindra Chary, examined as PW16, is one of the panch witnesses for the observation of scene of offence situated in the hut / house of Accused No.5 at Hyderabad. On oath, it is the say of
PW16 that he and one G.Venkateshwarlu (LW17) were present on 12-08-2016 when the Inspector of Police, Thorrur (PW19) observed and prepared Crime Details Form-IV under Ex.P16 and drew rough sketch under Ex.P17 at the hut of A5. In the cross examination, he admitted that A5 raised a hut opposite to their house covered with plastic rice bags to which no doors are fixed. He denied the suggestion that Inspector of Police, Thorrur neither visited their village nor prepared Crime Details Form nor drawn rough sketch.
The evidence of PW16 would prove that the hut of A5 was made up with plastic rice bag covers without any doors.
13.As mentioned at the beginning of this Judgment, the victim and her parents have testified as PW1 to PW3. In her evidence, PW1 deposed that while she was studying 8th standard in Sri Vignan High
School, Nagaram village, A1 used to drive the auto and he used to follow her. She added that two months after completion of her 8th class Annual examinations, A1 approached her at the school, demanded her to love him; otherwise he would kill her. She deposed that as she was unwell, on 04-08-2016, she stayed at 13 OF 25 S.S.C.No. 85 OF 2017 home and her parents went to the fields for agricultural works and that at around 2:00 pm, A1 & A2 came there to their house and forcibly took her in the auto of A2 to the outskirts of their village, from where A2 left with his auto leaving her and A1 there. It is her further say that the Accused No.1, while threatening her to love him, dragged her to Chinthalabodu, outskirts of their village, made her lie down and committed rape on her. She pleaded with Accused
No.1 to leave her but he paid deaf ear, and took her to the house of
A3 & A4 at Cherlapalem in a bus and from there to Hyderabad to the house of A5 and confined there. In the cross examination, she admitted that there is a rice mill situated opposite to their house separated by a road, but she did not raise cries to draw the attention of the workers in the rice mill while A1 & A2 were taking her forcibly in the auto. She further admitted that she did not raise alarm to attract the neighbors of A3 & A4 at Cherlapalem village.
She admitted that she did not inform the co-passengers in the bus that A1 was taking her forcibly. She further admitted that the house of A5 in Hyderabad was made up of empty cement bags.
Though she denied the suggestion that no doors are fixed to the hut of A5, the same cannot be believed for the reason that when the very shelter of A5 was made up of the empty cement bags, one cannot expect that the doors with strong security would be fixed to it. That apart, one of the panch witnesses examined as PW16, who is residing opposite to the hut of A5, clearly admitted in the cross examination that A5 raised a hut opposite to their house covered with plastic rice bag covers and no doors are fixed to it. Taking cue 14 OF 25 S.S.C.No. 85 OF 2017 above from the admissions made by PW1 that she did not raise alarm to attract the workers in the rice mill, passengers in the bus and neibhours of A3 to A5, the learned counsel for the accused sought to argue that PW1 is a consenting party and with her co- operation only, the accused took her to several places as such it cannot be said that the accused A1 and A2 kidnapped her forcibly.
14.Understandably, to prove that the victim (PW1) is a child within the meaning of Sec.2(d) of POCSO Act, the prosecution has examined one M.Bixamaiah, Head Master of Sri Vignan High School, where PW1 was studying as on the date of incident, as PW6. It is the evidence of PW6 that as per the record available in their school, the date of birth of victim (PW1) is 14-06-2002 and he issued Ex.P5,
Study, Conduct and Date of Birth Certificate. Though the defence would contend that the school in which this witness PW6 is working as Head Master was not recognized by the Government, the same cannot be taken into account for the reason that the witness asserted that the Government recognized the school in the year 2010. Of course, PW1, being the victim and her parents as PW2 &
PW3, deposed in one voice, that as on the date of the incident, the age of PW1 was 14 years. The evidence of PW1 to PW3 corroborated by the evidence of PW6 and the contents of Ex.P5 would prove that as on the date of the offence in this case, the age of the victim is 14 years, 1 month and 21 days. Though the admissions made by the victim (PW1) would prove that she has coolly accompanied A1 & A2 in the auto, as she was aged below 18 years and he is a child as defined in Sec.2(d) of the POCSO Act, her 15 OF 25 S.S.C.No. 85 OF 2017 consent cannot be taken into consideration. As discussed herein
before, the alleged eye witnesses for taking the victim by A1 & A2
in the auto who testified as PW4 and PW18 have turned hostile to the case of prosecution. Thus, the evidence of PW1 is only available with regard to the charge under Sec.366 & 366A of I.P.C., framed against A1 & A2. As discussed herein before, the evidence of PW1 would prove that while she was at home at around 2:00 pm on 04- 08-2016, both A1 & A2 went there in the auto of A2, took her from home initially to Chinthalabodu area, outskirts of the village, from where A2 left with his auto leaving A1 and the victim there. With this in mind, this Court is of the opinion that the prosecution could prove the guilt of A1 for the charge under Sec.366 of I.P.C. and A2 for the charge under Sec.366-A of I.P.C.
15.It is the say of the victim (PW1) that after A2 left with his auto from the outskirts of their village, Accused No.1 took her to
Chinthalabodu, pushed her down, committed rape on her and detained her there till 6:30 pm; thereafter, took her in a bus to the house of A3 & A4 at Cherlapalem and kept her there for that night
before taking her to Hyderabad on the next day. In the cross
examination, PW1 denied the suggestion that the Accused No.1 did not commit rape on her at Chinthalabodu. Except the above said suggestion which was promptly denied by the victim, nothing important is elicited from her mouth in so far as her allegation that
Accused No.1 committed rape on her at Chinthalabodu on 04-08- 2016 is concerned.
16 OF 25 S.S.C.No. 85 OF 2017
16.It appears after she was brought back from Hyderabad by none other than the Accused No.1, on 09-08-2016 at the instance of
Investigating Officer (PW19), Dr.Shashi Jyosthna (PW14), Assistant
Professor, Department of OBC, CKM Hospital, Warangal, examined the victim (PW1). It is the say of PW14 that she has examined the victim on 09-08-2016 and found that hymen was torn and introitus was admitting one finger easily. She collected vaginal swabs and smears for analysis, issued Ex.P13, preliminary report, and after receipt of the report from APFSL vide Ex.P14, she issued Ex.P15 final opinion, opining that there is no medical evidence of recent sexual intercourse, but there is nothing suggestive that she has not participated in sexual intercourse. In the cross examination, the doctor admitted that by mere absence of hymen intact it cannot be said that the woman / girl was subjected to intercourse. She denied the suggestion that mere admitting one finger into the introitus is not the proof of sexual intercourse. It is there in the evidence of this witness PW14 that she issued Ex.P15, final opinion, basing on the report of APFSL. According to the evidence of PW14, she collected vaginal swabs, smears and pubic hair for analysis on 09- 08-2016. According to the case of the prosecution, the commission of offence of rape on PW1 has occurred on 04-08-2016. As per the record, PW1 was subjected to medical examination on 09-08-2016, five days after the incident of the alleged rape. As there was a long gap of five days for examination of the victim by the medical officer, one cannot expect any positive findings by the Experts at
FSL from the examination of vaginal swabs, vaginal smears and 17 OF 25 S.S.C.No. 85 OF 2017 pubic hair. As noticed herein before, the finding of the doctor that there is no medical evidence of recent sexual intercourse is based on the report of APFSL. However the same doctor, in her report opined that there is nothing suggestive that the victim has not participated in sexual intercourse. At the cost of repetition, I may once again say that the defence could not make any dent, in the cross examination of PW1, atleast in so far as the accused No.1 committed rape on her in the afternoon on 04-08-2016 at
Chinthalabodu, outskirts of their village, Beerishettigudem. The only suggestion in this regard that A1 did not commit rape on her was denied by her promptly. The evidence of PW1 corroborated by the findings and opinion of the medical officer (PW14) and the contents of Ex.P15, Final Opinion would prove that that the accused
No.1 has committed rape on the victim (PW1) on 04-08-2016.
17.It is well settled principle of law that in sexual offences, the testimony of a victim is vital and unless there are compelling reasons, courts should act on such testimony alone to convict the accused as held in State of Himachal Pradesh Vs. Sanjay Kumar @
Sunny reported in AIR (2017) 835. In Bandari Gangaram and another Vs. State of A.P., represented by its Public Prosecutor reported in 2011(3) ALT (Crl.) 50 A.P., it was held that in rape cases, if the evidence of the victim girl itself is cogent and trustworthy, the same can be accepted.
18.PW2 and PW3 are the parents of the victim (PW1). Both these witnesses, in one voice, deposed that as on the date of the offence 18 OF 25 S.S.C.No. 85 OF 2017 that took place in the month of August, 2016, the age of their daughter was 14 years and on the date of offence, they asked their daughter PW1 to bring lunch to the field, but she did not do it and on their return to home in the evening, they found their daughter missing; consequently, PW2 gave report to Police and three days thereafter, their daughter called them on phone from Thorrur; soon they went there and brought their daughter back to home. It is their further say that their daughter informed them that the accused No.1 (Madhu) took her to Cherlapalem village, from there to Hyderabad in a bus and brought her back to Thorrur. Though the above evidence of these two witnesses was disputed during the cross examination, the defence could not elicit any useful material from their mouth which would render their evidence untrustworthy.
19.In so far as the age of the victim (PW1) is concerned the common say of PW2 & PW3, the parents of the victim, is that as on the date of the incident that took place in the month of August, 2016, it is 14 years. Further, understandably, to prove that the victim (PW1) is a child within the meaning of Sec.2(d) of POCSO Act. The prosecution has examined one M.Bixamaiah, Head Master of Sri Vignan High
School, in which she was studying, as PW6. It is the evidence of
PW6 that he is working as Head Master in Sri Vignan High School and as per the record, the date of birth of the victim (PW1) was recorded as 14-06-2002. Though the defence would contend that the school in which he was working as Head Master was not recognized by the Government, to oblige the Police, the same cannot be believed for the reason that no Head Master, in the 19 OF 25 S.S.C.No. 85 OF 2017 considered opinion of this Court, would ventured to mention the date of birth other than the registered one as per their school to oblige the Police. As per the evidence of PW6 coupled with the contents of Ex.P5, Study, Conduct and Date of Birth Certificate of the victim (PW1) is 14-06-2002.The date of offence in this case was on 04-08-2016, thus, as on the date of offence the age of the victim (PW1) was 14 years one month and 21 days. Thus it can be said without hesitation that as on the date of the offence on hand, PW1 was a child as defined under Sec.2(d) of POCSO Act.
20.In compliance with the provisions of the POCSO Act, the
Investigating Officer (PW19), has availed the services of
Ms.S.Geetha (PW15), a woman Head Constable for recording the
Sec.161 Cr.P.C., statement of the victim (PW1). On oath, it is the say of PW15 that on the request of the S.I.of Police, Narsimhulapet
P.S., she has recorded the Sec.161 Cr.P.C. statement of PW1 at her house. One or two omissions elicited during the cross examination of PW1 were confronted to this witness. As the omissions elicited during the cross examination of PW1 are minor in nature and insignificant, much credence need not be attached to them.
21.S.Ravinder (PW17) and K.Sridhar (PW19) are the Investigating
Officers. It is PW17 who registered the present case against the accused on the report given by the father of the victim. He deposed about the registration of crime, issuance of F.I.R. under Ex.P18 and recording the statements of PW2, PW3, PW4 and PW18. Further,
PW19, being the main Investigating Officer in this case, deposed 20 OF 25 S.S.C.No. 85 OF 2017 about the investigation made by him including referring the victim girl (PW1) to the medical officer for examination, observation of scenes of offence, seizure of material objects like clothes of the victim (PW1) in the presence of panch witnesses, arrest of the accused, producing A1 before the medical officer for potency test and filing of charge sheet. In the cross examination, he admitted that the house of A3 consisted of only one room in which A3, his wife, his parents & his children are staying. He further admitted that the hut of A5 is made up of empty plastic cement bags. PW19 denied the suggestion that A1 & A2 have neither kidnapped PW1 from her house nor took her to Chinthalabodu nor A1 committed rape on her there. In this regard, though, PW1 deposed that she was kept in the house of A3 and locked from outside and that she was kept in the hut of A5 in Hyderabad and confined her there, the same cannot be believed.
22.As discussed herein before, the evidence of PW1 would prove that A1 & A2 took her in an auto to the outskirts of their village, from where A2 left with his auto leaving A1 and her (victim) there.
Further, the evidence of PW1 would prove that the accused No.1 dragged her upto Chinthalabodu, committed rape on her.
23.Though the prosecution alleged that A3 to A6, being the relatives of A1, demanded the victim to love A1 and to marry him and allowed A1 to keep her in their respective houses, there is no evidence, much less worth acceptable, as to the role played by them in the commission of offence. With this in mind, this Court is 21 OF 25 S.S.C.No. 85 OF 2017 of the opinion that the prosecution failed to prove the guilt of A3 to
A6 for any of the charges framed against them beyond reasonable doubt. Accordingly, they (A3 to A6) are entitled to benefit of doubt.
24.In the result, Midathapally Madhu (A1) is found guilty for the charges under section 366, 376(2)(i), 343, 506 of I.P.C., and Sec.3 r/w 4 of POCSO Act. Accordingly, he is convicted for the said charges under section 235(2) of Cr.P.C. Aluvala Lingaiah (A2) is found guilty for the charge under section 366-A of I.P.C.
Accordingly, he is convicted for the said charge under section 235(2) of Cr.P.C. A2 is found not guilty for the charge under section 506 r/w 109 of I.P.C., Sec. 3 r/w 4, Sec.16 r/w 17 of POCSO
Act. Accordingly, he is acquitted for the said charges under section 235(1) of Cr.P.C.
25.Darmarapu Venkanna(A3), Darmarapu Kalyani(A4), Darmarapu
Naresh(A5) and Darmarapu Renuka(A6) are found not guilty for the charges under section 343, 506, 109 of I.P.C., Sec.3 r/w 4 and
Sec.16 r/w 17 of POCSO Act. Accordingly, they are acquitted for the said charges under section 235(1) of Cr.P.C.
(Typed to my dictation, corrected and pronounced by me in the Open Court on this the 01st day of September, 2021).
Sd/-
SPECIAL JUDGE FOR PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT
CUM- I ADDL. SESSIONS JUDGE,
WARANGAL.
26.After recording conviction, I have heard A1 and A2 personally, their counsel on record and Addl.P.P. on the quantum of sentence to be awarded.
22 OF 25 S.S.C.No. 85 OF 2017
27.It is the submission of Accused No.1 that he lost his father long back, he is the sole bread winner of the family consisting of his mother and aged grand parents and prayed for mercy and lenient view.
28.It is the submission of Accused No.2 that he is a married man having wife & three children, his two younger sisters were blind by birth, his aged parents are dependents on him and prayed for mercy and a lenient view.
29.Admittedly, even according to the prosecution, it is the first offence of these two accused (A1 & A2). A1 was aged of (20) years, while A2 was aged of (25) years, as on the date of offence.
Considering the facts and circumstances of the case, more particularly, the family back ground and burdens of the accused, this court is of the opinion that a lesser sentence would meet the ends of justice. The offence on hand took place in the year 2016 prior to the amendment to the POCSO Act which came into force w.e.f 16-08-2019. Since the offence took prior to the amendment, this court is of the opinion that the minimum sentence prescribed under the POCSO Act, prior to the amendment, would meet ends of justice. Accordingly, Midathapally Madhu(A1) is sentenced to undergo Rigorous Imprisonment for seven (07) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only) for the charge under
Sec.376(2)(i) of I.P.C. Midathapally Madhu(A1), is further sentenced to undergo Rigorous Imprisonment for two (02) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only) for the charge under Sec.366 of I.P.C. Accused No.1 is further sentenced 23 OF 25 S.S.C.No. 85 OF 2017 to undergo Rigorous Imprisonment for seven (07) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only), in default to suffer
Simple Imprisonment for fifteen (15) days for the charge under Sec.
3 r/w 4 of POCSO Act. He is further sentenced to undergo Rigorous
Imprisonment for one (01) year for the charge under Sec.343 of
I.P.C. A1 is further sentenced to undergo Rigorous Imprisonment for one (01) year for the charge under Sec.506 of I.P.C.
30.Accused No.2 is sentenced to undergo Rigorous Imprisonment for two (02) years and to pay a fine of Rs.500/- (Rupees Five Hundred
Only), in default to suffer Simple Imprisonment for fifteen (15) days for the charge under Sec.366-A of I.P.C.
31.As per the material on record, the victim/PW1 was put to severe mental trauma owing to the penetrative sexual assault committed by the Accused No.1 and in her young age 14 years, she was subjected to untold misery in coping up with her physical and mental health after the crime was committed. The victim and her family deserve suitable financial aid to restore her mental and physical health, to rehabilitate her and to overcome the stigma.
Hence, this Court grants a compensation of Rs.3,00,000/- (Rupees
Three Lakh Only) to the victim as provided under Sec.33(8) of
POCSO Act read with 357A Cr.P.C. and Rule 9 of POCSO Rules, 2020. The said compensation shall be paid by the State
Government from the victim compensation fund within 30 days of receipt of copy of this Judgment. The District Legal Services 24 OF 25 S.S.C.No. 85 OF 2017
Authority, Warangal, shall ensure that the compensation so awarded is, in fact, paid to the victim.
32.MO1 & 2, clothes shall be destroyed after appeal time is over.
33.MO3, Auto bearing No.AP 20 Y 1953 which was entrusted to
R.Naganna for interim custody is subject to the result of the appeal.
34.MO4, Bike bearing No.TS 08 R/R 2766 which was entrusted to
Darmarapu Naresh for interim custody is subject to the result of the appeal.
(Typed to my dictation, corrected and pronounced by me in the Open Court on this the 01st day of September, 2021).
Sd/-
SPECIAL JUDGE FOR PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT-CUM-
I-ADDITIONAL SESSIONS JUDGE,
WARANGAL.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION:FOR DEFENCE :
PW1: Victim None PW2: Father of the victim PW3: Mother of the victim PW4: Padidam Soma Lingaiah PW5: Padidam Ramesh PW6: Maduri Bixamaiah PW7: Ganji Srinivas Reddy PW8: Maragani Murali PW9: Donekeni Laxman PW10: Gandi Venkanna PW11: Daravath Ramulu PW12: Gattupally Sunil Chary PW13: Pally Ramachandraiah PW14: Dr.Shashi Jyothsna PW15: S.Geetha PW16: Manchoju Ravindra Chary PW17: S.Ravinder PW18: Lingala Venkanna PW19: K.Sridhar Rao 25 OF 25 S.S.C.No. 85 OF 2017
EXHIBITS MARKED
FOR PROSECUTION:
Ex.P1: Sec.164 of Cr.P.C. Statement of PW1 Ex.P2: Report, dated: 05-08-2016 Ex.P3: Sec.161 Cr.P.C. Statement of PW4 Ex.P4: Sec.161 Cr.P.C. Statement of PW5 Ex.P5: Study, Conduct and Date of Birth Certificate of PW1,
dated: 17-06-2009
Ex.P6: Signature of PW7 on Crime Details Form-I, dated: 09-08-2016 at the house of the complainant, Beerishettygudem village Ex.P7: Crime Details Form-I, dated: 05-08-2016 at the house of complainant at Beerishettygudem village. Ex.P8: Signature of PW8 on Crime Details Form, dated: 05-08-2016 at Beerishettygudem village Ex.P9: Signature of PW9 on Crime Details Form, dated: 05-08-2016 at Beerishettygudem village Ex.P10: Signature of PW10 on Crime Details Form-II, dated: 05-08-2016 Ex.P11: Signature of PW11 on Crime Details Form-II, dated: 05-08-2016 Ex.P12: Signature of PW12 on Crime Details Form-III,
dated: 05-08-2016 at Cherlapalem village
Ex.P13: Preliminary Report, dated: 09-08-2016 issued by PW14 Ex.P14: APFSL Report, dated:21-09-2016 Ex.P15: Final Opinion, dated: 23-10-2016 Ex.P16: Crime Details Form-IV, dated: 12-08-2016 at Hyderabad Ex.P17: Rough Sketch prepared at Hyderabad Ex.P18: First Information Report Ex.P19: Crime Details Form, dated: 05-08-2016 at the outskirts of Beerishettygudem village Ex.P20: Sec.161 Cr.P.C. Statement of PW18 Ex.P21: Crime Details Form – II, dated: 05-08-2016 at Chinthalabodu, Beerishettygudem village of Narsimhulapet mandal Ex.P22: Crime Details Form-III, dated: 05-08-2016 at Cherlapalem village Ex.P23: Confession and Recovery of Panchanama Ex.P24: Potency Certificate of A1, dated: 20-09-2016
FOR DEFENCE:
Nil
MATERIAL OBJECTS MARKED:
MO1: Yellow colour top MO2: Maroon Colour pants (lower) MO3: Auto bearing No.AP 20 Y 1953 MO4: Bike bearing No. TS 08 T/R 2766
Sd/-
SPECIAL JUDGE FOR PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT-CUM-
I-ADDITIONAL SESSIONS JUDGE,
WARANGAL.