Page 1 Fair Judgment in SC (POCSO) No. 123 of 2022
IN THE COURT OF THE I ADDL. DISTRICT AND SESSIONS JUDGE -CUM-
SPECIAL COURT TO TRY THE OFFENCES UNDER PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012, SIDDIPET.
Present : Sri K. Murali Mohan,
I Addl. District & Sessions Judge -cum-
Judge, Special Court to try offences
under POCSO Act, 2012, Siddipet.
Monday, the 22nd day of April, 2024.
S.C. (POCSO) New No. 123 of 2022
S.C. (POCSO) Old No. 110 of 2022 (Cr.No. 166 of 2021 of PS Doulthabad)
Name and description of theThe State through complainant:Circle Inspector of police, Thoguta.
Name and description of the accused:Thalari Srikanth, S/o. Srinu, age : 20 yrs, Occ : Agril., R/o. Surampally (V), Doulthabad (M), Siddipet dist.
Offence charged:Sec. 366, 376 IPC, sec. 3 r/w. 4 of POCSO Act, 2012.
Plea of the accused:Pleaded not guilty
Finding of the Court:Found guilty for the offences punishable u/secs. 363 IPC, 376 IPC and sec. 3 r/w. 4 of POCSO Act, 2012
Sentence or Order :Accused is convicted and sentenced to undergo SIMPLE IMPRISONMENT for a period of THREE YEARS for the offence u/sec. 363 IPC ; and to pay fine of Rs.1,000/-, in default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one month in addition.
The accused is further sentenced to undergo SIMPLE IMPRISONMENT for a term of TEN YEARS and also to pay a fine of Rs. 1,000/- for the offence u/sec. 3 r/w. Sec. 4 of POCSO Act, 2012, in default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one month in addition.
Page 2 Fair Judgment in SC (POCSO) No. 123 of 2022
All the above sentences shall run concurrently.
The Total Fine imposed is Rs. 2,000/- (Rupees Two Thousand only).
The Period of custody (i.e. from 28-10-2021 to 24-11-2021) undergone by accused shall be set off u/sec. 428 Cr.P.C.
Accused is informed of his Right to prefer an appeal against the judgment of this Court before the Hon'ble High Court for the State of Telangana.
He is also informed of his right to free legal aid for preferring appeal in the event he does not have means to engage Advocate to prefer appeal.
A copy of this Judgment is supplied to the Accused at free of cost.
The case is under The POCSO Act, 2012 and the Special Court U/Sec. 33 (8) and Rule 7, 9 of The POCSO Rules is empowered by law to quantify the compensation payable to victim. Considering the incident of kidnap and penetrative sexual assault against the child who was aged 17 years, the Special Court feels it appropriate that compensation of Rs. 2,00,000/- (Rupees Two Lakhs only) is to be awarded to the victim for her rehabilitation purpose and for her future. Accordingly an amount of Rs. 2,00,000/- (Rupees Two Lakhs only) is awarded to the victim as compensation for her rehabilitation and for her future. Office is directed to send a copy of this judgment to District Legal Services Authority, Siddipet to process the compensation and see that victim realises the compensation amount without delay.
This sessions case is coming before me for final hearing and disposal in the presence of Sri Yasala Venkata Lingam, Spl.P.P. for the State and Sri D.Ravinder,
Advocate for the Accused and after having stood over for consideration today the Court made the following :-
Page 3 Fair Judgment in SC (POCSO) No. 123 of 2022
- : J U D G M E N T :-
1.The above named accused is facing trial before this Court for the offences
U/Secs. 366, 376 of Indian Penal Code, 1860 (in brief IPC) and section 3 r/w. 4 of
Protection of Children from Sexual Offences Act, 2012 (in brief POCSO Act).
2.The brief allegations of prosecution case are that, Victim (identity of the child is not disclosed in view of bar U/sec. 33 (7) of POCSO Act, r/w. sec. 228-A IPC) is aged about 17 years. The parents of the victim (PW2 and LW2 YYYY) were working in a poultry farm and the victim along with her parents living in the poultry farm quarters provided by the management. The accused is also working in the same poultry farm. The accused developed acquaintance with the minor victim and exchanged phone numbers. The accused proposed to love her. In absence of her family members accused went to the room in which the family of victim was staying and forcibly committed rape on her. Accused induced and pressurized the victim and committed kidnap on 19-10-2021 in the afternoon and taken her from Surampally to
Doulthabad and from there to Ramayampet and to Secunderabad railway station.
They used to roam outside during the day time and in night they stayed in the railway station. The accused brought the victim to Gajwel on 24-10-2021 and boarded her into an auto to Doulthabad and accused left to Hyderabad. The victim was found by police. Initially on the date of missing of the victim i.e. on 19-10-2021, basing on the report of mother of the victim, the PW-11/Sub-Inspector of police,
Doulthabad registered a case in Cr.No. 166/2021 under section 363 IPC and issued
FIR and recorded the statement of PW2 and proceeded to Surampally village, examined and recorded the statements of PW3 and another.
Page 4 Fair Judgment in SC (POCSO) No. 123 of 2022
Later PW-12 took up investigation of this case. He made requisition to
LW12/WPSI to record the statement of the victim. Victim was forwarded to
Government Area Hospital, Gajwel for medical examination. PW9 examined the victim and she collected samples of swabs and smear for FSL examination. PW12 collected bonafide certificate of the victim from the Head-master, UPS, VVVV.
Section of law was altered by adding section 366, 376 IPC and sec. 3 of POCSO
Act to existing section and sent a memo to the Court concerned. PW-13 took up further investigation in this case and on instructions PW12 apprehended the accused on 28-08-2021 and produced him before PW13. The accused confessed the offence in the presence of PW6 and another mediator. Confession was reduced into writing and Vivo Y1901 model mobile phone was seized from the possession of accused by police. The accused lead them to Om Sai Poultry Farm, where the offence of rape was perpetrated, the same was observed and CDF with rough sketch was prepared.
Accused was referred to medical officer for examination and after complying due formalities he was sent to Court concerned for judicial remand.
Police made requisition to the Court for police custody of accused and produced the accused before Medical officer for potency test, accused was examined and potency certificate was issued. On requisition, Judicial First Class Magistrate,
Siddipet recorded the statement of the victim under sec. 164 Cr.P.C. The material objects were forwarded to FSL, Hyderabad for analysis. After completion of investigation, PW-15 Inspector of police, Thoguta circle filed charge sheet against accused.
Page 5 Fair Judgment in SC (POCSO) No. 123 of 2022
3.The case was taken cognizance for the offences U/Sec. 366, 376 IPC and sections 3 and 4 of The Protection of Children from Sexual Offences Act, 2012 and numbered as SC (POCSO) No. 110/2022.
4.After establishment of new Siddipet judicial district and as per the
Proceeding Orders of the Hon'ble High Court for the State of Telangana vide
ROC.No. 346/E1/2022, dt : 01-06-2022 and Lr.Dis.No. 2161/2022, dt : 02-06-2022 of Prl. Dist. & Sessions Court, Medak at Sangareddy, the entire case record was transferred to this Court on the point for jurisdiction, for disposal in accordance with law. After receipt of entire record the case is re-numbered as SC (POCSO) No. 123 of 2022.
5.On appearance of accused, copies of case documents were furnished to him as contemplated U/Sec. 207 Cr.P.C.
6.Basing on the material on record and after hearing both sides, charges for the offences U/Secs. 366, 376 IPC, sec. 3 r/w. 4 of POCSO Act, 2012 were framed against the accused and Charges were read over to him in Telugu for which accused pleaded not guilty and claimed to be tried.
7.During the course of trial, the prosecution got examined
PWs. 1 to 15, exhibited Exs. P1 to P24 documents and marked MO-1 mobile phone. The learned Spl. Public Prosecutor given the evidence of LW2/YYYY,
LW6/G.Srinu, LW11/N.Sathaiah, LW15/J.Naresh, LW17/Smt. Salma Fathima, Prl.
JCJ -cum- JFCM, Siddipet to avoid the repetition of evidence and also given up the
Page 6 Fair Judgment in SC (POCSO) No. 123 of 2022 evidence of LW16/Dr.N.Varalaxmi, who issued potency certificate of accused since she was suffering from ill-health.
8.After closure of the prosecution evidence, the accused was examined
U/Sec. 313 Cr.P.C with regard to incriminating evidence appearing in the prosecution case for which accused denied the same and stated it to be false and reported no defence evidence.
9. Heard the arguments of learned Spl. Public Prosecutor and learned counsel for the accused. Perused the entire oral and documentary evidence on record.
The learned Spl. Public Prosecutor argued that the evidence of
PW-1/Victim and her mother/PW-2 is corroborated with each other, so also with the medical evidence and with the evidence of other witnesses. It is further argued that there is sufficient evidence to prove that accused committed penetrative sexual assault against the victim and kidnapped her. All these facts were sufficiently proved through the evidence of PW-1 to PW-15 and the prosecution proved its case beyond all reasonable doubt and accused is liable for the charges for the offences u/sec. 366, 376 IPC and sec. 4 of POCSO Act.
The case of the defence is that of total denial. The learned counsel for the accused argued that there are several discrepancies in the evidence of PW-1 and PW-2, as such it is not safe to rely on their testimony. It is further contended that this false case has been foisted against the accused and the prosecution failed
Page 7 Fair Judgment in SC (POCSO) No. 123 of 2022 to prove its case beyond all reasonable doubt and that accused is entitled for acquittal.
10.In the light of the above contentions and from the evidence available on record, points that arise for determination of this Court are as under :-
POINTS FOR DETERMINATION :-
1. Whether the prosecution could establish that the victim was a child as
on the date of the alleged offence as defined u/sec. 2 (1) (d) of The
POCSO Act, 2012 ?
2. Whether the prosecution could prove that the accused has committed
penetrative sexual assault against the victim on 13-10-2021 and
kidnapped the minor victim on 19-10-2021 ?
3. Whether prosecution proved the guilt of the accused for the offences
punishable u/secs. 366, 376 IPC and Section 3 R/w. 4 of the POCSO Act,
2012 beyond reasonable doubt ?
11.It is the brief case of the prosecution that accused developed acquaintance with the minor victim and committed rape against her in the quarters of the victim family in poultry farm. Thereafter the accused kidnapped the minor victim and taken her to Secunderabad and they stayed for about 5 days and victim returned back.
12.In order to prove the above points, the prosecution has examined
PW-1 to PW-15. PW-1 is the the victim. PW2 is her mother. PW3 is the owner of the poultry farm in which the parents of the victim were working. PW3 deposed about missing of victim on 19-10-2021 but PW3 denied that accused was also working in the poultry farm. PW4 and PW5 are the panch witnesses for scene of offence. PW6 panchayath secretary is mediator for confession of
Page 8 Fair Judgment in SC (POCSO) No. 123 of 2022 accused. PW7 is SGT, UPS, Head-master, VVVV, who issued date of birth certificate of victim. PW8 is brother-in-law of the victim deposed about missing of victim. PW9 is the medical officer, who examined the victim and issued
Ex.P6 and P8 medical examination reports basing on Ex.P7 FSL report.
PW10 is the Radiologist examined the victim and issued Ex.P9 age determination certificate. PW11 is the SI of police, who registered the FIR u/sec. 363 IPC. PW12 is Inspector of police took up the investigation from
PW11. PW13 is Inspector of police took up further investigation. PW14 is woman SIP, examined the victim and recorded her statement. PW15 conducted further investigation and filed charge sheet.
In the light of above evidence now it has to be seen, whether prosecution proved the above point Nos. 1 to 3.
POINT No. 1:- Whether the prosecution could establish that the victim was a child as on the date of the alleged offence as defined u/sec. 2 (1) (d) of The POCSO Act, 2012 ?
13.The POCSO Act, 2012 was enacted for protecting the children under the age of 18 years from sexual offences. For applicability of the provisions of
POCSO Act, the prosecution has to prove that victim is the 'child' below the age of 18 years.As per section 2 (1) (d) of POCSO Act 'Child' means any person below the age of 18 years.
14.To prove the said fact the prosecution examined the SGT teacher/PW7, Head-master of UPS, VVVV, in which the victim studied. PW-7
Page 9 Fair Judgment in SC (POCSO) No. 123 of 2022 issued Ex.P5 bonafide certificate of victim, which reveals the date of birth of the victim namely XXXX as 21-05-2004. PW-7 categorically deposed that on written requisition made by SI of police, Doulthabad they issued Ex.P5 bonafide certificate of the victim basing on the entries of admission register and that he was examined by police. As per Ex.P5 bonafide certificate the date of birth of the victim is 21-05-2004. It shows that the victim is aged about 17 years 4 months and 23 days as on the date of alleged offence. There is no serious contest by the defence with regard to the age of victim. Hence, it is clear that victim is below the age of 18 years and a 'child' under POCSO Act. Moreover PW-1 also deposed in her evidence that her date of birth was 21-05-2004. The said evidence of PW-1 regarding her age was not disputed by the defence in cross-examination.
15.In the cross-examination of PW7 Head-master it was suggested by the learned defence counsel that he issued Ex.P5 without any written requisition by police and the entries in Ex.P5 are not correct and the said suggestions were denied by PW-7. However, there is no serious contest by the defence with regard to the age of the victim. Nothing is suggested to disbelieve the Ex.P5 bonafide certificate of victim.
16.PW-10 is Associate Professor of Government Medical College,
Siddipet, deposed that he conducted ossification test of the victim and basing on radiological examination he opined that the victim is aged about 17 to 18 years.
Ex.P9 is age determination certificate. Since date of birth certificate is filed, Ex.P9 age determination certificate of victim issued by medical officer as victim is aged
Page 10 Fair Judgment in SC (POCSO) No. 123 of 2022 about 17-18 years has no significance. Hence, this Court is relying on Ex.P5 bonafide certificate of the victim.
17.Since the victim is below the age of 18 years, the victim falls within the definition of 'child' as defined under Section 2 (1) (d) of The POCSO Act, 2012 and the provisions of POCSO Act are applicable and the victim child is entitled for the protection from sexual offences under this Act. Therefore, accused shall be dealt as per the provisions of POCSO Act. Hence, the Point No. 1 is answered in favour of the prosecution.
POINT NO. 2:- Whether the prosecution could prove that the accused has committed penetrative sexual assault against the victim on
13-10-2021 and kidnapped the minor victim on 19-10-2021 ?
18.This point No. 2 is consisting of two major allegations of prosecution against the accused. The first allegation is with regard to committing of rape on a minor victim by the accused on 13-10-2021 in room in poultry farm.
19.The second allegation is taking away the minor victim by the
accused with him on 19-10-2021 on his motor cycle from lawful custody of
her parents and committing her kidnap by taking her to Secunderabad without the permission of her parents and staying there till 24-10-2021.
20.Allegation (i).
(i). Penetrative Sexual Assault/Rape on victim in her quarters on 13-10-2021.
Coming to the first allegation of Penetrative Sexual Assault, the same is defined under Section 3 of the POCSO Act, which reads as follows :-
Page 11 Fair Judgment in SC (POCSO) No. 123 of 2022
Section 3 : A person is said to commit "penetrative sexual assault" if--
(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.
21.In this regard evidence of the victim/PW1 is very crucial. The victim (PW1) deposed in her evidence that she studied upto 8th standard and her parents works in OS poultry farm in SSSS of Doulthabad mandal and they were staying the quarters allotted to her parents by the owner of the poultry farm. On 13-10-2021 the accused threatened her to cause harm to her parents and sexually exploited her.
He committed rape against victim in a room at the poultry farm.
22.It is pertinent to note that remaining part of her evidence is in connection with the allegation of kidnap, where, when and how she was taken by accused and her return and about recording of her statements by police and JFCM,
Siddipet and her medical examination etc. Second part of the said evidence of PW1
Page 12 Fair Judgment in SC (POCSO) No. 123 of 2022 is with regard to the allegation of kidnap and the same will be discussed later. Now
I confine to scrutinise and discuss the evidence on record with regard to the allegation of rape and penetrative sexual assault committed against the victim on 13-10-2021.
23.The victim was cross-examined at length by the learned counsel for the accused. Here I deem it proper to refer the cross-examination of PW1/victim by the defence in respect of the allegation of rape only and the cross-examination in respect of kidnap will be discussed separately.
24.In her cross-examination in respect of the allegation of rape and penetrative sexual assault, PW-1 reveals that she got acquaintance with the accused one year ago and that poultry farm is 10 feet distance from quarters and 3 to 4 supervisors are employed to maintain the poultry farm and 30 workers are working.
25.During the cross-examination of PW1 it is elicited that there is only one room in her quarter and accused came to her quarter. Prior to that she did not call the accused over phone. She did not raise alarm, hue or cry when the accused came to her quarter. She did not call her parents when accused came to her quarter. The workers used to attend the work in poultry farm between 09:00 AM to 02:00 PM and 03:00 PM to 05:00 PM. PW-1 denied the suggestion that on 13-01-2021 accused did not commit rape against her. She was taken to medical officer twice. But, she do not remember the dates. According to PW1 she was taken to medical officer on the night of 24-10-2021 when she was found by police. 3 to 4
Page 13 Fair Judgment in SC (POCSO) No. 123 of 2022 months later she was again taken to medical officer. Police did not seize her clothes. She denied the suggestion that she was deposing at the instance of police and legal officer of Bharosa centre.
26.It is pertinent to note that except the above few questions, the major portion of the cross-examination of PW-1 is in respect of the allegation of kidnap only, that will be discussed later.
27.According to PW1/victim the rape was committed against the victim on 13-10-2021 in their room in quarters of poultry farm. Admittedly there were no eye witnesses to the said offence of rape and penetrative sexual assault. According to
PW2 (mother of the victim) after return of the victim on 24-10-2021 victim revealed to her that accused sexually exploited her in their room at SSSS. In her cross- examination PW2 deposed that there are six rooms for workers in poultry farm and they stay in the second room. The other workers along with their children reside in their respective quarters. There will be one Supervisor. The victim was studying 8th standard and she was going to school. On the said day the victim did not go to school. PW1 often come to the room to drink water. The rest of the cross- examination of PW2 is with regard to missing of the victim and with the allegation of kidnap of victim girl.
28.Except PW6 panchayath secretary who acted as mediator for confession of the accused and PW9 medical officer who examined the victim, the other witnesses did not depose anything regarding the allegation of rape or
Page 14 Fair Judgment in SC (POCSO) No. 123 of 2022 penetrative sexual assault on minor victim. PW-9 is medical officer, deposed that she examined the victim and found irregular hymenal tear. She collected the vaginal swabs and smear for forwarding the same to FSL, Hyderabad for analysis.
She issued Ex.P6 preliminary examination report and basing on Ex.P7 FSL report she also issued Ex.P8 final opinion that possibility of rape cannot be excluded. In the cross-examination, she stated that due to physical activity there may be hymenal tear.
29.Coming to the evidence of PW1 (victim) in respect of the allegation of rape and penetrative sexual assault by the accused, she categorically deposed that on 13-10-2021 accused threatened her that he would cause harm to her parents and sexually exploited her and that accused committed rape against her in a room at poultry farm. Though PW1 was cross-examined at length by the learned counsel
for the accused no material omissions or contradictions were elicited in respect of
said allegation of rape against the victim. However, few omissions were elicited with regard to the alleged threatening of accused to victim during the course of kidnap, i.e., in between the period 19-10-2021 and 24-10-2021. As such, the said omissions if any will not effect the credibility of the PW1 in respect of the allegation of rape on 13-10-2021 i.e., one week prior to the said kidnap.
30.In cross-examination of PW-1 with regard to the allegation of rape, the defence mainly relied on and tried to elicit that she did not raise hue and cry when the accused came to her quarter and she did not call her parents and did not inform the neighbours. The learned counsel for the accused argued that if the accused committed rape on the victim by force, why the victim did not raise hue and cry and
Page 15 Fair Judgment in SC (POCSO) No. 123 of 2022 what prevented her from informing her parents or calling the neighbours. In this regard it is the specific evidence of PW1 that, she was threatened by the accused at that time, that he will cause harm to her parents and he sexually exploited her and committed rape. Therefore, due to fear of accused and due to threatening of accused, the victim might have not raised alarm or hue and cry. Even otherwise from this conduct of the victim, in not making hues and cry or not calling her parents or neighbours when the accused came to her room for committing rape or penetrative sexual assault on her, this would show that the victim may be a consenting party. It is pertinent to note that here the victim is under the age of 18 years and her consent has no role. Therefore, the silence of victim at the time of offence is not at all sufficient to discard her entire evidence.
31.It is pertinent to note that for the offence of penetrative sexual assault against a child under the age of 18 years and as per the provisions of POCSO Act, 2012 the consent of the victim is not a criteria. Even if the child victim has given consent, it constitute an offence of penetrative sexual assault u/sec. 3 of POCSO
Act, 2012. Committing penetrative sexual assault will be offence irrespective of the consent of the victim who is under the age of 18 years. Therefore, the contention of the learned counsel for the accused that the victim did not raise hue or cry and she did not inform her parents immediately about the rape etc. are not sustainable defences.
32.It is elicited in the cross-examination of PW-2 (mother of victim) that she frequently visits their room and the workers and supervisor were available in
Page 16 Fair Judgment in SC (POCSO) No. 123 of 2022 the poultry farm during day time. Hence it does not mean that, the accused has no time gap to visit the room of the victim for committing the rape.
33.In cross-examination of PW-1, nothing was elicited to doubt her testimony in respect of the allegation of rape on her. Not even single omission or contradiction is elicited in this regard. Though certain omissions are elicited in cross-examination of PW-1/victim they are concerned with the allegation of kidnap and for the period from 19-10-2021 to 24-10-2021 only.
34.Moreover, the evidence of PW1 is very much corroborated with the evidence of PW9 and Ex.P6 preliminary examination report, Ex.P7 FSL Report and
Ex.P8 final opinion of the medical officer, which was issued basing on FSL report.
As per Ex.P8 final opinion 'the possibility of rape cannot be excluded' as per Ex.P7
FSL report, human semen is detected in item No. 6. Therefore, the evidence of
PW1 is corroborated with the evidence of PW9 and medical evidence.
35.It is pertinent to note that though the medical officer who conducted potency test of the accused was not examined due to her ill-health, the Ex.P24 potency certificate was marked through PW15/police officer. As per Ex.P24 potency certificate, Medical Officer opined that “there is nothing to suggest that Talari
Srikanth, S/o. Srinu (Accused) is not capable of performing sexual act”. Moreover, the defence has not disputed or denied the potency of accused and here impotency is not the defence of accused. Hence, the non-examination of medical officer who issued Ex.P24 potency certificate is not at all fatal to the case of prosecution.
Moreover as per section 29 of POCSO Act it is the burden of accused to prove his
Page 17 Fair Judgment in SC (POCSO) No. 123 of 2022 defence that he is impotent or any other defences if he wishes. In view of the above discussion it is clear that the evidence adduced by the prosecution is sufficient to prove that accused committed penetrative sexual assault/rape against minor victim on 13-10-2021.
Allegation (ii)
(ii). Kidnap of victim from Surampally to Secunderabad on 19-10-2021 and staying there till 24-10-2021.
36.Coming to the second allegation of kidnap it is the evidence of PW1 that six days after the alleged rape i.e. on 19-10-2021 accused took her to
Doulthabad on his motor cycle.
37.In this regard it is categorically deposed by PW-1/victim that the accused asked her to marry him one day prior to 18-10-2021, but she did not accept his proposal. On 19-10-2021 the accused took her on his motor cycle from
Surampally to Doulthabad. At Doulthabad the accused called one of his friends and asked him to take the bike from Doulthabad. At Doulthabad accused and victim boarded a bus to Secunderabad and they went to Secunderabad railway station, there they stayed and on 24-10-2021 returned to Gajwel. Accused made her to board an auto proceeding to Doulthabad. Accordingly victim reached Doulthabad.
Police saw her and brought her to Surampally. While boarding the auto the accused threatened her to kill if she reveals his name to police or to her parents. Police examined her and recorded her statement. She gave her sec. 164 Cr.P.C.
statement. She was sent for medical examination.
Page 18 Fair Judgment in SC (POCSO) No. 123 of 2022
38.Here I will focus on the cross-examination of the victim by the defence counsel with regard to the allegation of kidnap and the said threatenings of accused to victim for not to reveal his name. In her cross-examination PW1 deposed that accused called her and asked her to accompany him. The Supervisor and others were not available when the accused took her, so she did not inform anyone.
According to PW1, people were available in other quarters.
39.No doubt few omissions were elicited in the cross examination of PW1.
For the purpose of convenience I will place all the omissions at one place to discuss their significance.
39.1.In her cross-examination, PW1 admitted that ‘she did not state to police that accused threatened her that he would kill her parents in case she refused to accompany him as such she accompanied the accused.’ 39.2.PW1 further admitted that she did not state to police that accused took her on his motor cycle from Surampally to Doulthabad. PW-1 also admitted that she did not state to police that the accused called his friend from Doulthabad and asked him to take back the motor cycle’ .
39.3.PW1 further admitted that ‘she did not state to police that accused threatened her not to reveal his name to police or to his family members, when he made her to board the auto to send her to Doulthabad.’ 39.4.According to PW1 she stated before police that ‘they boarded a bus at
Doulthabad went to Ramayampet and then to Secunderabad’.
Page 19 Fair Judgment in SC (POCSO) No. 123 of 2022
40.As seen from the above omissions elicited in cross-examination of
PW1, it is clear that PW1 deposed in her cross-examination that "she did not state
to police that accused threatened her that he would kill her parents in case
she refused to accompany him as such she accompanied the accused." In this regard it is pertinent to note that in her evidence in chief examination, PW1 never deposed that accused threatened her to kill her parents in case she refused to accompany him, as such, she accompanied him. It is the evidence of PW1 that accused took her on his motor cycle. She did not state about any threatening while taking her. Therefore, the same cannot be considered as omission. Though PW1 did not depose in her evidence in chief examination that while committing the kidnap accused threatened to kill her parents, surprisingly the defence put such suggestion as omission in cross-examination of PW1. The omission will attract to the facts which were deposed by witnesses in Court for the first time. Hence the same is not at all valid under eye of Law and cannot be treated as omission. When the witness deposed in her evidence for the first time without disclosing the said fact to police during her examination then only such statement will have its significance as omission. It is pertinent to note that in her evidence in chief examination, PW1 deposed that on 19-10-2021 the accused took her on his motor cycle from Surampally to Doulthabad and to Secunderabad railway station. Hence,
PW1 never deposed in her evidence about any threatenings of accused while taking away the victim with him. Therefore, the same will not have any significance as omission and will not have any impact with regard to the credibility of PW1/victim in any manner.
Page 20 Fair Judgment in SC (POCSO) No. 123 of 2022
41.Coming to other omissions that PW1 omitted to state to police that 'accused took her on his motor cycle and asking his friend to take back the motor cycle from Doulthabad and that PW1 omitted to state to police that accused threatened her not to reveal his name to police when he made her to board the auto on 24-10-2021 while returning to Doulthabad'. Though the said two facts which were deposed by PW1 in her evidence were elicited as omissions in cross- examination of PW1, the defence failed to put the said omissions to the investigating officer or to the PW14 woman SI who examined and recorded the statement of the victim (PW1). As per trial procedure and it is settled legal proposition that, mere putting and eliciting some omissions in cross-examination of the witness is not sufficient and it will not serve the purpose, unless the said omissions are proved through the investigating officer. But, here the defence did not choose to put the said omissions to the police officer who recorded the statement of the victim to find out whether PW1 stated those facts to PW14 during examination u/sec. 161 Cr.P.C.
42.It is not out of place to mention that generally the private witness or victim will not have opportunity to refer her previous statement while giving her evidence before the Court. Therefore, there is every possibility that the witness may forget, whether she stated the said fact to police during her examination or not which was recorded by police two years prior to her evidence. Hence, investigating officer/police officer (PW14) who recorded the statement of the victim is the competent person to answer correctly, since Investigating officer is having the opportunity to refer the previous statement of the victim u/sec. 161 Cr.P.C. to
Page 21 Fair Judgment in SC (POCSO) No. 123 of 2022 refresh her memory since it was recorded by her. Hence, investigating officer (PW14) alone is the right person to answer such questions. Therefore, the omissions are required to be proved through the investigating officer only. Thus, mere putting such suggestions to victim and eliciting them in cross-examination of victim alone as omission, will not serve any purpose and cannot be considered as omissions are proved. Eliciting the omission in the cross-examination of a witness is different from proving the omission through cross-examination of police officer who recorded the previous statement of the witness u/sec. 145 of Indian Evidence
Act.
43.In this regard it is argued by the learned counsel for the accused that there are omissions and several lacunas in the evidence of PW-1 and it is not safe to rely on her evidence. This Court carefully examined the evidence of PW-1. As discussed above in the cross-examination of PW-1 and PW-2, not even single material omission or contradiction were elicited and proved. Except some suggestions, nothing improbable was elicited by defence in the cross-examination of PW-1 and PW-2. As discussed above every omission has to be elicited and proved through the investigating officer only that the witness omitted to state certain material facts during the course of examination by police. Then only the facts if any which were not stated to police and were deposed directly by the witness for the first time in the court, can be considered as omissions. Therefore, absolutely there were no omissions and contradictions in the evidence of PW-1 and PW-2 and even if any are there they were not proved as per Law. Hence, this Court has no reason to disbelieve their evidence.
Page 22 Fair Judgment in SC (POCSO) No. 123 of 2022
44.Even otherwise as per explanation to section 162 Cr.P.C. it is provided that, when the omissions are significant in nature, then only they can be considered as contradictions. Here the above two omissions though not proved, they are not at all significant also. Hence, they cannot be considered as contradiction and they are not sufficient to impeach the credibility of PW1 in any manner.
45.Coming to the other facts elicited during the cross-examination of PW1 that, when victim was taken to Secunderabad, victim (PW1) did not call her parents as accused did not permit her to call her parents. She did not approach the Railway
Police or the other people to disclose that accused forcibly brought her to
Secunderabad. In this regard the learned counsel for the accused argued that if the accused forcibly taken away the victim, what prevented her from approaching the railway police in railway station and why she did not raise alarm for 5 days during their stay in Secunderabad. I found no force in the said contention of the defence.
Because, as discussed above, the consent of the victim is not a criteria in case of kidnap of minor girl. Section 361 IPC defines the 'kidnapping from lawful guardianship' which reads as follows :- 361 IPC - Kidnapping from lawful guardianship:- "Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship".
Page 23 Fair Judgment in SC (POCSO) No. 123 of 2022
Section 363 IPC provides punishment for kidnapping :- "Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
46.From the above reading it is clear that prosecution has to prove that taking out of the lawful guardianship of the minor by the accused, without the consent of such guardian. Therefore, the consent of the minor is not a criteria.
47.As the victim not raised alarm for 5 days, during the period of kidnap, would show that the victim may not have objection for said kidnap. For the offence of kidnap consent of victim will not waive the criminal liability of accused. Here, the evidence of PW2 is clear that on that day at 12:00 noon she came to her room for water and found the victim was unavailable. She enquired with others and lodged the Ex.P1 report to police. Few days thereafter victim returned and informed that, accused took her to Hyderabad forcibly. The same was corroborated by the evidence of PW3/owner of the poultry farm and PW8/brother-in-law of victim.
Therefore, it is clear that there may be consent of victim while taking her with him from the lawful guardianship but here, no consent was obtained from her parents or the guardian as required u/sec. 361 IPC. Hence it is a clear case of kidnap.
48.Though PW1 was cross-examined at length on various aspects, nothing was elicited to doubt her testimony with regard to the allegation of rape and kidnap. It is revealed by PW1 in her evidence that during day time accused and
Page 24 Fair Judgment in SC (POCSO) No. 123 of 2022 herself roamed in the city and during night times they stayed in Secunderabad railway station till 24-10-2021. On that day, they returned to Gajwel and accused made her to board an auto proceeding to Doulthabad and she reached Doulthabad.
Police saw her and brought her to Surampally.
49.It is pertinent to note that the evidence of PW1 and PW2 are corroborated with Ex.P1 report. After tracing of the victim her statement u/sec. 164
Cr.P.C. was recorded by police which is forming part of the record. In her sec. 164
Cr.P.C. statement, the victim revealed that 'on 13-10-2021 accused and herself had sexual intercourse and on 19-10-2021 herself and accused went together and they went to Doulthabad and from there to Ramannapet and Secunderabad railway station and they used to roam during day time and stayed in railway station during night. On 24-10-2021 she returned home and she boarded the auto in Gajwel and got down at Doulthabad and police taken her when she was about to board the auto to Surampally and that accused threatened her to kill. The entire version of the victim in her section 164 Cr.P.C. statement was fully corroborated with the evidence of PW1 so also with the prosecution case.
50.On overall perusal of the entire evidence on record and Ex.P1 report,
FIR and sec. 164 Cr.P.C. statement of PW-1 and testimony of PW2, absolutely there are no contradictions, omissions, embellishments, exaggerations in their evidence. There are no material inconsistencies in the evidence of PW-1 and PW-2 and the minor discrepancies and omissions which are elicited are not proved and will not goes to the roots of the prosecution case. The evidence of PW-1 and PW-2
Page 25 Fair Judgment in SC (POCSO) No. 123 of 2022 so also the evidence of PW3, PW8 and the medical evidence with regard to the offence of rape and kidnap are fully corroborating with the prosecution case. It is also corroborating with Ex.P1 report of PW1 and her statement u/sec. 164 Cr.P.C.
The said statements and Ex.P1 report can be used to corroborate the prosecution case u/sec. 157 of Indian Evidence Act. The minor discrepancies, which are elicited in the cross-examination of PW-1 and PW2 are not sufficient to discard the entire evidence of PW-1 and PW-2 in toto.
51.PW-3 is the owner of the poultry form, deposed that the parents of the victim worked in poultry farm for about 2 years before the alleged incident. On 19-10-2021 parents of the victim at around 12:30 noon called and informed him that the victim went missing, he suggested to search for her. They again called and informed him that the accused was also not available and was missing. In the cross-examination of PW4 it was elicited that the accused was not a worker in poultry farm.
52.The mediators for crime detail form PWs. 4 and 5 deposed that police obtained their signatures on papers and they identified their signatures. According to PW4, police drafted something, read over the contents and obtained his signature. According to PW5 his signature was obtained by police but he did not depose anything about the said panchanama. PW5 was treated as hostile and was cross-examined by Spl. Public Prosecutor. It is elicited from the evidence of PW4 that he acted as mediator for the scene of offence panchanama but PW5 deposed that he simply signed on some papers. The evidence of PW5 is not that much
Page 26 Fair Judgment in SC (POCSO) No. 123 of 2022 crucial, since PW4 another mediator supported the prosecution case to the extent of drafting of scene of offence panchanama by police and police read-over its contents to PW4 and obtained his signatures.
53.Coming to the evidence of PW6 (panchayath secretary) he acted as mediator for confession of the accused. PW6 deposed in his evidence that on 28-10-2021 at 09:30 AM he was called by police. Himself and LW11/N.Sathaiah,
VRA went to circle office, Thoguta. They interrogated the accused who confessed the offence, that though he was aware that the victim was minor he committed rape against the victim forcibly in the quarters of poultry farm and forcibly kidnapped the victim on 19-10-2021 and taken her to Hyderabad and they stayed in Hyderabad till 24-10-2021. Basing on the confession of the accused police recovered Vivo Blue colour phone MO-1 from the possession of the accused under cover of panchanama by affixing panch slips. It is pertinent to note that the confession of the accused in the custody of police is hit by sections 25 and 26 of Indian Evidence Act.
However the information which leads to recovery of material fact is relevant u/sec.
27 of Indian Evidence Act. Hence entire evidence of PW6 regarding the confession of accused is not relevant and cannot be proved. Here the confession or information given by accused only to the extent of recovery of MO-1 mobile phone from the possession of the accused is only relevant u/sec. 27 of Indian Evidence
Act. But prosecution failed to connect the MO-1 mobile phone with the present case. Therefore, the evidence of PW6 is not much helpful to the case of the prosecution. However the other evidence available on record is sufficient to prove the case.
Page 27 Fair Judgment in SC (POCSO) No. 123 of 2022
54.Since the children are vulnerable, in their best interest and for the protection of children from sexual offences, certain presumptions were provided under POCSO Act in section 29 and 30.
Sec. 29 of POCSO Act reads as follows :-
Presumption as to certain offences :-
Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
55.From the above section 29 of the Act, it is clear that Special Court shall presume that the accused has committed the offence of penetrative sexual assault u/sec. 3 of the Act, unless contrary is proved by accused. In the present case prosecution by adducing sufficient evidence established that accused committed penetrative sexual assault on the victim who is under the age of 18 years. Now it is the burden on the part of the accused to disprove the case of the prosecution that he has not committed the offence of penetrative sexual assault u/sec. 3 of the Act.
Unless the contrary is proved the guilt of the accused shall be presumed. Since it is 'shall presumption' Court shall presume the 'commission of offence u/sec. 3 of the
Act' against the accused, till contrary is proved by the accused. Therefore, here it is the accused to rebut the said presumption. But in the present case accused failed to rebut the said presumption. As per section 29 of the POCSO Act, 2012 the accused has to rebut the presumption that he has not committed the offence of rape or penetrative sexual assault u/sec. 3 of the Act against victim. But, the
Page 28 Fair Judgment in SC (POCSO) No. 123 of 2022 defence failed to rebut the said presumption and failed to disprove the case of the prosecution. Hence, this Court can come to conclusion that accused committed the offence u/sec. 3 of POCSO Act.
56.Even otherwise, even without the aid of presumption u/sec. 29 of
POCSO Act, the evidence of prosecution witnesses is very much sufficient. The evidence is corroborative and this court has no reason to disbelieve the evidence of
PW-1 and PW-2 and other medical evidence. Though the learned defence counsel tried his best to bring on record that the accused was falsely implicated in this case, but defence is unsuccessful in their attempt and failed to place any material or any suggestion as to what is the necessity to PW1 and PW2 to falsely implicate the accused in this case. Absolutely there is no suggestion in this regard from the side of defence.
57.It is pertinent to note that the defence did not elicit or did not even contend that there were some animosity between the accused and the family of victim. In absence of any motive or serious disputes, there is no necessity to PW-1 and PW-2 to falsely implicate the accused in this case and depose falsehood against him if he is really innocent and if he never commit any offence against the victim. The defence failed to put any suggestion attributing such malafide motives on the part of the victim/PW-1 and her mother PW2 as is required to implicate him in such serious case under POCSO Act with an allegation of rape and kidnap.
Therefore, the family of the victim has no reason to file such serious case against the accused and depose falsehood by involving the future and respect and reputation of the victim, who is young girl, aged about 17 years. No family will
Page 29 Fair Judgment in SC (POCSO) No. 123 of 2022 venture to do that. Without committing such grave offence of rape against her, no girl of tender age will come and depose on Oath against the accused that he committed rape and exploited her sexually at the cost of her future and marriage prospects. No mother will come and depose that accused exploited her daughter sexually unless she was seduced. The defence also did not suggest any strong reason as to why PW1 and PW2 deposed against the accused. Hence, this Court find no reason to disbelieve the evidence of PW1 and PW2. There is no necessity to PW1 and PW2 to depose falsehood against the accused.
58.This Court is unable to agree with the contention of the defence that
PW1 and PW2 being daughter and mother are interested witnesses. It is settled law that mere relationship between the victim and PW-2 is not a ground to treat the
PW-2 as interested witness. The defence failed to contend or establish, what benefit the PW-1 and PW-2 would get if they are successful in getting conviction of the accused. In catena of judgments, Hon'ble Apex Court time and again reiterated that mere relationship is not sufficient to consider any witness as interested. For any of the reason the PW-1 and PW-2 cannot be considered as interested witness and mere relationship is not a criteria to consider the witness as interested.
Moreover the evidence of PW1 and PW2 flows in very natural manner and found to be reliable and trustworthy and inspires the confidence of the Court. Hence, this
Court relied on the evidence of PW-1 and PW-2 without any hesitation.
59.It is needless to reiterate that, sole testimony of victim is sufficient to prove the case, if it is found to be reliable and trustworthy. In the present case the
Page 30 Fair Judgment in SC (POCSO) No. 123 of 2022 evidence of PW-1/victim inspires the confidence of the Court and also corroborated by Ex.P1/report and her sec. 164 Cr.P.C. statement and with the testimony of PW-2 and other evidence of prosecution witnesses. It is settled principle of Law that the evidence must be weighed but not counted. We cannot expect any direct witness for the offence of rape. Such offence will not commit openly. Therefore, the number of witnesses examined is not a criteria to prove a rape case. Hence, this Court is safely relying on the evidence of PW-1, which was corroborated with her statement under sec. 164 Cr.P.C. u/sec. 157 of Indian Evidence Act and also corroborated with the testimony of PW-2 and other witnesses.
60.It is pertinent to note that the evidence of PW-1 and PW-2 is very much corroborated with each other in material particulars and inspires the confidence of this Court. Nothing improbable was elicited in their cross-examination in respect of the said incident of kidnap and rape against the victim by the accused. The evidence of PW-1 and PW-2 stood for the test of cross-examination and the credibility of PW-1 and PW-2 was not impeached.
61. The learned defence counsel argued that, some falsity is mixed in the evidence of P.Ws. 1 and 2 and the facts on record would show that it was an act of consent on the part of the victim but she deposed on Oath that by threatening her to cause harm to her parents accused committed the offence. Admittedly victim did not raise hue or cry during the offence. Therefore, it is argued that the PW-1 is not trustworthy and her evidence that accused committed offence forcibly cannot be relied upon. I am of the opinion that even if any minor discrepancies are spoken by
Page 31 Fair Judgment in SC (POCSO) No. 123 of 2022
WP. s. 1 and 2 that may be natural while narrating an incident and are not sufficient to falsify their entire evidence. This Court further reiterates that, consent of the minor victim is not criteria. If there are omissions and if some falsity is found in respect of alleged threatenings of accused with regard to the offence of kidnap, and about victim not raising hues and cries etc. are not sufficient to discard the entire evidence of PW1.
62.It is needless to say that the maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars, even if any falsity is found in their evidence and even if any fact is suppressed or exaggerated.
63.I feel it is appropriate to refer the judgment of Hon’ble Apex Court in this regard which is reported as,Bur Sing and another Vs. State of Punjab 2009 (1) ALD (Crl.) 45 (S.C.).In this case the Hon’ble Apex Court held that :
“ It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of a rule of law.”…….
“ The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.”…….
Page 32 Fair Judgment in SC (POCSO) No. 123 of 2022
64.In the above authority the Hon’ble Apex Court cautioned the courts to separate the grain from chaff and truth from falsehood from the testimony while appreciating the evidence, where ever it is possible. I feel it is profitable to go through the relevant para…… “An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against the which they are made, the only available course to be made is to discard the evidence in toto.” …….
65.In the light of the above authority, here in the present case also, the evidence of P.Ws. 1 and 2 cannot be branded as completely foisted and falsehood on the simple ground that, there are some minute discrepancies, which indicates that the victim voluntarily accompanied the accused and that she did not raise hues and cries. Here it is the case of kidnap and rape of minor victim. Though the victim deposed in her evidence that she was taken away by the accused and accused threatened her not to reveal his name and alleged threatening to cause harm to her parents etc. are even if proved to be false or exaggerations, as she did not raise alarm in those five days stay, even by excluding the said part of the evidence from the testimony of PW1, the remaining evidence is sufficient to prove the charges and guilt of the accused. On that sole ground the entire evidence of PW-1 and PW-2 cannot be brush aside with regard to said kidnap and rape.
66.It is pertinent to note that as far as the allegation against the accused with regard to committing of rape on 13-10-2021 and kidnap on 19-10-2021, is
Page 33 Fair Judgment in SC (POCSO) No. 123 of 2022 concerned, same is sufficiently established through the evidence of PW-1 and
PW-2 without any amount of doubt and inspires confidence of this Court. It is needless to reiterate that the consent of the minor is not criteria. Even if the alleged threatenings were not proved though, there is no answer by the victim for not raising hues and cries during the offence, the same is not sufficient to falsify her entire evidence. At best it can be concluded that she was consenting party. Just because the minor victim suppressed her consent before Court, is not at all sufficient to brand the witness as lier because either it was with her consent or without the consent of minor victim, the same constitute an offence u/sec. 3 of
POCSO Act, 2012 so also the offence of kidnap.
67.In view of the above discussion the PWs. 1 and 2 are found to be trustworthy. However in this case it is not a hard task or difficult challenge to separate the grain from the chaff. H ere in the present case it is feasible to separate the truth from falsehood if any.Hence in the light of the above judgment it is not proper on the part of this court to discard their evidence in toto. Therefore, even excluding the discrepancy part with regard to the consent of victim and not raising hues and cries during the offence etc., the remaining part of the evidence of PW-1 is intact and found to be reliable. If the discrepancy part if any is excluded or separated from their evidence, the rest of the evidence of PW-1 inspires the confidence of this Court. Hence, the evidence of victim/PW1 is trustworthy and without any hesitation this Court is relying on the said evidence of victim.
Page 34 Fair Judgment in SC (POCSO) No. 123 of 2022
68.As seen from the circumstances of the case the same is found to be convincing and all the circumstances coupled with each other are rightly connecting with the evidence of P.Ws. 1 and 2 so also with Ex.P1 report and Ex.P6 to P8 medical evidence and testimony of PW9 medical officer. The combination of their evidence coupled together leads to find out and suggesting that accused committed rape on victim on 13-10-2021 and taken her to Secunderabad on 19-10-2021 and they stayed there till 24-10-2021 would be true and giving rise to a conclusion that the said circumstances of rape and kidnap are existing.
69.The interpretation clause Section 3 of the Indian Evidence Act defines the “Proved” as under :-
Sec. 3 - Proved :
“A fact is said to be proved when, after considering the matters before it, the Court, either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
70.When section 3 of the Evidence Act is applied to the facts of present case and on considering all the circumstances and matter before this court, the court believes its existence and the existence of rape and kidnap are so probable.
Moreover, there is presumption u/sec. 29 of the POCSO Act and accused failed to disprove the case of rape against him. On careful perusal of above evidence of
P.Ws. 1 and 2 and entire material on record and also in the light of presumption available u/sec. 29 of the POCSO Act gives rise to a strong belief even to an ordinary prudent man, that the accused committed rape and kidnap of minor victim.
Page 35 Fair Judgment in SC (POCSO) No. 123 of 2022
I earnestly feel that the occurrence of the said incident is so probable in the circumstances narrated by the prosecution witnesses and the offence can be considered as proved u/sec. 3 of Indian Evidence Act. Thus the technicalities if any raised by the defence will not come in between the said proof and are not at all sufficient to discard the proof of the prosecution case.
71.This Court is of the considered opinion that on conglomeration of the facts and circumstances of the case, having heard both sides, on perusal of the material on record and appreciation of the evidence on record, the discrepancies pointed out in the evidence and lapses of investigation by the learned defence counsel are not in any way destroy the core of the prosecution case. The evidence on record more particularly the testimony of PWs. 1 and 2 is very clear and clinching that accused committed rape against the minor girl and kidnapped the victim from the lawful guardianship.
72.In the circumstances of the case, it is profitable to refer the judgment of
Hon’ble Apex Court reported in 2002 Law suit Supreme Court 454 = 2002 (6)
SCC, in between Krishna Mochi and others Vs. State of Bihar. In this case at page no.81 and at para No.76 it is observed by Hon’ble Supreme Court pleased to that :
“These days when crime is looming large and humanity is suffering and society is so much affected thereby, duties and responsibilities of the Courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is in practice, changing world over and Courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong
Page 36 Fair Judgment in SC (POCSO) No. 123 of 2022 acquittals”. I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Indersingh and another V.
State (Delhi Administration) AIR 1978 Supreme Court 1091, Krishna Iyer J. laid down that “proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." (Emphasis added)
73. In view of the above guiding principles laid down by Hon'ble Apex
Court, it is clear that, the minor discrepancies if any are very natural in prosecution of any criminal case and truth suffers some infirmity when projected through human processes. Therefore, the discrepancies which are minor in nature pointed out in the evidence of PW-1 and PW-2 cannot be given much importance as they are not at all sufficient to shaken the prosecution case as a whole.
74.In the above judgment Hon’ble Apex Court by referring various other judgments pleased to held that “in the case of State of UP Vs. Anil Singh, AIR 1988 Supreme
Court 1998, it was held that a Judge does not preside over a criminal trial nearly to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform. In the case of
State of West Bengal Vs. Ori Lal Jaiswal and another (1994) 1 Supreme Court Cases 73, it was held that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of
Mohan Singh and another Vs. State of MP (1999) 1 Supreme Court Reports 276, it was held that the Courts have been removing chaff from grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created.
It is onerous duty of the Court, within permissible limit to find out the truth. It means on one hand
Page 37 Fair Judgment in SC (POCSO) No. 123 of 2022 no innocent man should be punished, but on the other hand to see no person committing an offence should get scot free. If inspite of such effort suspicion is not dissolved it remains writ at large, benefit of doubt has to be credited to the accused.”
75.From the foregoing discussion and in the light of above Judgment coupled with the entire evidence on record examined with the aid of presumption u/sec. 29 of the POCSO Act, this Court firmly believes that in the present case, the accused is not an innocent and he committed offence of penetrative sexual assault and kidnap against minor victim. Hence, the guilty cannot be escaped on flimsy grounds and the wrong doer should be punished.
76.From the overall discussion and in view of the above reasons this
Court is of the opinion that prosecution proved sufficiently that accused committed the rape/penetrative sexual assault on the minor child and committed her kidnap.
Hence, point is answered in favour of the prosecution.
POINT NO. 3 :- " Whether prosecution proved the guilt of the accused for the offences punishable u/secs. 366, 376 IPC and Section 3 R/w. 4 of the POCSO Act, 2012 beyond reasonable doubt ?"
77.In view of the discussion in point No. 2 above and in the backdrop of the legal position referred supra, by application of the same to the factual matrix of the case, without any hesitation, this court comes to the conclusion that the prosecution proved the guilt of Accused for the charges. In view of the above discussion this Court is of the opinion that by placing cogent and convincing evidence, prosecution has proved it’s case beyond all reasonable doubt that accused committed the offences of rape and penetrative sexual assault against the
Page 38 Fair Judgment in SC (POCSO) No. 123 of 2022 victim who is aged about 17 years and the same is punishable under Section 376 and sec. 3 r/w. 34 of the POCSO Act, 2012.
78.Apart from that it is also proved that accused committed kidnap of the victim girl. Here the further charge against the accused is for the offence u/sec.
366 IPC.
79.The ingredients for the offence of section 366 IPC are :- a. Kidnap or abduction of any woman b. With an intention or knowing that she will be compelled to marry or forced or seduced to illicit intercourse.
80.Here in the present case though it is proved that the victim is a girl under the age of 18 years and she was taken away by the accused from the keeping of lawful guardian of such minor girl without the consent of the guardian, accordingly accused has committed the offence of kidnap. But, from the evidence of
PW1 there is no whisper that accused intended or enticed or committed any act of sexual nature during the period of kidnap in between 19-10-2021 and 24-10-2021.
It is th evidence of PW1 that in the day time they roamed and in the night they stayed in Railway station during the said period. Hence absolutely there is no evidence to show that accused with an intention to marry the victim or committed some act that she will be compelled or forced or seduced to illicit intercourse.
Therefore, one of the major required ingredient for the offence u/sec. 366 IPC is not proved. However, the acts of taking away the minor girl from the lawful
Page 39 Fair Judgment in SC (POCSO) No. 123 of 2022 guardianship without the consent of the parents of the victim constitute the offence of kidnap which is punishable u/sec. 363 IPC only.
81. As per section 222 Cr.P.C. though the accused is not charged for the offence u/sec. 363 IPC, the accused can be convicted for the said offence u/sec.
363 IPC. In view of section 222 (1) Cr.P.C. though the accused is charged for the offence u/sec. 366 IPC, which is consisting of several particulars and a combination of some of particulars constitute a complete minor offence and such combination is proved and the remaining particulars of seducing or forcing for illicit intercourse are not proved, hence the accused can be convicted for the minor offence of section 363 IPC, though not charged since it is cognate offence of section 366 IPC. As per section 222 (2) Cr.P.C. the accused can be convicted for complete minor offence although he is not charged for it. Here section 363 IPC is complete minor offence to section 366 IPC. Hence accused can be convicted for the offence u/sec. 363 IPC though not charged.
82.In view of the above, prosecution failed to prove the case u/sec. 366
IPC however prosecution proved its case against the accused for the offence u/sec.
363 IPC, 376 IPC and section 3 r/w. 4 of POCSO Act, 2012 beyond all reasonable doubt and point is answered accordingly.
83.In the result, the Accused is found guilty for the offences punishable under sections 363 IPC, 376 IPC and section 3 r/w. 4 of POCSO Act, 2012 and he is convicted U/Sec. 235 (2) Cr.P.C. MO-1 shall be confiscated to the State after
Page 40 Fair Judgment in SC (POCSO) No. 123 of 2022 appeal period is over. The matter is passed over for hearing the accused on quantum of sentence.
Typed to my dictation, corrected and pronounced by me in the open Court on this the 22 nd day of April, 2024.
Sd/-
I Addl. District & Sessions Judge -cum-
Judge, Special Court to try offences
under POCSO Act, 2012, Siddipet.
QUANTUM OF SENTENCE :-
84. The accused is questioned with regard to the quantum of sentence.
Accused pleaded mercy of the court stating that 'he is living by doing centring work.
Accused further submitted that he is aged about 23 years and that he is only son to his parents and his parents are old aged and unable to do any work and that they are dependents on him. He further submitted that his entire family is dependents on him and he hails from poor family and if he is sent to jail nobody is there to look- after his parents and prayed to show mercy by taking lenient view. Except the general reasons the convict has not stated any special reasons.
85. The accused is convicted for the offence of kidnap and penetrative sexual assault against the child under the age of 18 years. The statement of objects and reasons of The POCSO Act, 2012 emphasizes as "The interests of the child both as a victim as well as witness need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence". The best interests and welfare of child is of paramount importance. Children are becoming easy prey because of their tender age; physical vulnerabilities and inexperience of life and society. Cases of sexual
Page 41 Fair Judgment in SC (POCSO) No. 123 of 2022 harassment on children are instances of perverse lust where even innocent children are not sparred in pursuit of such debased pleasure.
86. As held by Hon'ble Apex Court in Nawabuddin Vs. State of Uttarakhand, Crl.
Appeal No. 144 of 2022, by awarding suitable punishment commensurate with the act of sexual assault, sexual harassment a message must be conveyed that in crimes against children no leniency in punishment shall be shown.
87.However considering the submissions of the accused that he hails from poor family and living by doing centring work and that his old aged parents are dependents on him and considering his young age of 23 years, and this being his first offence and the victim was aged about 17 years, the accused is entitled for some mercy in awarding the sentence.
88.The accused is found guilty for the offences u/secs. 363, 376 IPC and sec. 3 r/w. 4 of the Protection of Children from Sexual Offences Act, 2012. Since accused is found guilty for the offence u/sec. 376 IPC, so also for the offence u/sec.
3 r/w. 4 of POCSO Act, 2012, as per section 42 of the POCSO Act, 2012 the
Special Court can impose punishment under the POCSO Act or under Indian Penal
Code whichever is greater in degree. Therefore, punishment can be imposed in respect of the offences under section 363 IPC and section 3 and 4 of POCSO Act only.
89. Considering all the above referred mitigating circumstances, this Court is of the earnest opinion that awarding following sentence would serve the purpose.
Page 42 Fair Judgment in SC (POCSO) No. 123 of 2022
90. In the result, accused is convicted and sentenced to undergo SIMPLE
IMPRISONMENT for a period of THREE YEARS for the offence u/sec. 363 IPC ; and to pay fine of Rs. 1,000/-, in default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one month in addition.
The accused is further sentenced to undergoSIMPLE
IMPRISONMENT for a term of TEN YEARS and also to pay a fine of Rs. 1,000/- for the offence u/sec. 3 r/w. Sec. 4 of POCSO Act, 2012, in default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one month in addition.
All the above sentences shall run concurrently.
The Total Fine imposed is Rs. 2,000/- (Rupees Two Thousand only).
The Period of custody (i.e. from 28-10-2021 to 24-11-2021) undergone by accused shall be set off u/sec. 428 Cr.P.C.
Accused is informed of his Right to prefer an appeal against the judgment of this Court before the Hon'ble High Court for the State of Telangana.
He is also informed of his right to free legal aid for preferring appeal in the event he does not have means to engage Advocate to prefer appeal.
A copy of this Judgment is supplied to the Accused at free of cost.
91. The case is under The POCSO Act, 2012 and the Special Court U/Sec.
33 (8) and Rule 7, 9 of The POCSO Rules is empowered by law to quantify the
Page 43 Fair Judgment in SC (POCSO) No. 123 of 2022 compensation payable to victim. Considering the incident of kidnap and penetrative sexual assault against the child who was aged 17 years, the Special Court feels it appropriate that compensation of Rs. 2,00,000/- (Rupees Two Lakhs only) is to be awarded to the victim for her rehabilitation purpose and for her future. Accordingly
an amount of Rs. 2,00,000/- (Rupees Two Lakhs only) is awarded to the victim as
compensation for her rehabilitation and for her future. Office is directed to send a copy of this judgment to District Legal Services Authority, Siddipet to process the compensation and see that victim realises the compensation amount without delay.
Typed to my dictation, corrected and pronounced by me in the open Court on this the 22 nd day of April, 2024.
Sd/-
I Addl. District & Sessions Judge -cum-
Judge, Special Court to try offences
under POCSO Act, 2012, Siddipet.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE PROSECUTION :-
PW-1 Victim XXXVictim/Witness
Identity of the victim shall not be disclosed in view of bar U/sec. 33 (7) of POCSO Act, r/w. sec. 228-A IPC. Hence, name not mentioned. PW-2Mother of Victim XXXXDe facto Complainant
Identity of the victim and her near and dear shall not be disclosed in view of bar U/sec. 33 (7) of POCSO Act, r/w. sec. 228-A IPC. Hence, name not mentioned.
PW-3 A.PraveenOwner of Sai Poultry farm and Circumstantial witness
PW-4O.KumarPanch witnesses for scene of offence panchanama-I PW-5T.Ravi
Page 44 Fair Judgment in SC (POCSO) No. 123 of 2022
PW-6B.SathishPanch witness for scene of offence- II, confession -cum- seizure panchanama
PW-7Pulluri ParameshwarHead-master issued Ex.P5 PW-8P.SrikanthCir. Witness Pw-9Dr.SindhuMedical officer examined victim, issued Exs. P6 & P8.
PW-10Dr.P.Srinivas RaoAssociate Professor issued Ex.P9
PW-11A.MallikarjunSIP & I.O. registered the case and investigated the case.
PW-12N.Chandra ShekarSIP & I.O. and investigated the case.
PW-13K.RavinderCIP & I.O. and investigated the case.
PW14V.SarithaWoman SIP examined and recorded the statement of victim
PW15B.KamalakarCIP & I.O. investigated the case and filed charge sheet.
ON BEHALF OF THE DEFENCE
-- Nil --
EXHIBITS MARKED
ON BEHALF OF THE PROSECUTION :-
Ex.P-1:Report Ex.P-2:Signature of PW4 on Ex.P11 Ex.P-3:Signature of PW5 on Ex.P11 Ex.P-4:Relevant portion of confession panchanama Ex.P-5:Bonafide certificate of victim Ex.P-6:Preliminary examination report Ex.P-7:FSL report Ex.P-8:Final opinion Ex.P-9:Age determination certificate Ex.P-10:FIR
Ex.P-11CDF with rough sketch Ex.P-12Section addition memo Ex.P-13CDF with rough sketch Ex.P-14(05) Photographs
Page 45 Fair Judgment in SC (POCSO) No. 123 of 2022
Ex.P-15Sec. 65-B IEA certificate Ex.P-16CDR relating to mobile No. 7993285978 Ex.P-17CAF relating to mobile No. 7993285978 Ex.P-18Sec. 65-B IEA certificate relating to mobile No. 7993285978 Ex.P-19Covering letter issued by nodal officer Reliance Jio services, dt : 25-2-2022 Ex.P-20CDR relating to mobile No. 8185892434 Ex.P-21CAF relating to mobile No. 8185892434 Ex.P-22Sec. 65-B IEA certificate relating to mobile No. 8185892434 Ex.P-23Covering letter issued by nodal officer Vodafone services Ex.P-24Potency certificate of the accused
ON BEHALF OF DEFENCE
- Nil -
MATERIAL OBJECTS
MO-1 : Vivo Blue colour phone
Sd/-
I Addl. District & Sessions Judge -cum-
Judge, Special Court to try offences
under POCSO Act, 2012, Siddipet.