1 Spl.S.C.No. 87 of 2018
IN THE COURT OF THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE (FTC), MAHABUBNAGAR
FAC IN THE COURT OF FAST TRACK SPECIAL SESSIONS JUDGE'S
COURT FOR EXPEDITIOUS TRIAL AND DISPOSAL OF RAPE AND POCSO
ACT CASES :: MAHABUBNAGAR
Wednesday, this the 23rd day of March, 2022
Present:- Smt. K. Uma Devi, II Addl.District and Sessions Judge, (FTC), Mahabubnagar, FAC, The Fast Track Special Court for Expeditious Trial and Disposal of Rape and POCSO Act Cases, Mahabubnagar.
SPECIAL SESSIONS CASE No.87 of 2018
(Cr.No.221 of 2016 of P.S . Balanagar )
1.Name and description of the: The Sub-Divisional Police Officer, Mahabubnagar. complainant
2.Name and description of the:A-1. Kammari Praveen Kumar S/o. accusedSrinivasulu, Age 23 years, Caste: Kammari, Occ: Worker at Surya Jyothi Spinning Mills, Burgula, R/o: Gouthapur village, Balanagar Mandal. A-2. Golla Kumar S/o. Yadaiah, age 23 years, Caste: Golla, Occ: JCB Driver, R/o: Gouthpur village, Balanagar Mandal. A-3. Boya Chennaiah S/o. Ramulu, age 21 years, Caste: Boya, Occ: Agriculture, R/o: Gouthapur village, Balanagar Mandal. A-4. Wadde Syam Prasad @ Wadde Shyam S/o. Venkatesh, age 20 years, Caste: Waddera, Occ: Private Job, R/o: Gouthapur village, Balanagar Mandal.
3.Offence charged: U/Sec.366-A and 376(2)(i)(n) 506 of IPC and U/Sec.5(l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 and Sec.3(2)(v) of SCs/STs (POA) Act 2015 against A1. U/Sec.366-A r/w 109 of IPC against A2 to A4.
4.Plea of the accused : Pleaded not guilty.
5.Finding of the Court : Found not guilty.
6.Conviction, sentence of : A1 found not guilty for the offences acquittalSub-Divisional punishable U/Sec.366-A and 376(2)(i)(n) 506 of IPC and U/Sec.5(l) r/w 6 of the Police Officer, Protection of Children from Sexual Mahabubnagar Offences Act, 2012 and Sec.3(2)(v) of SCs/STs (POA) Act 2015 and A2 to A4 are found not guilty for the offence punisable U/Sec.366-A r/w 109 of IPC . accordingly, he is acquitted U/Sec.235(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after six months U/Sec.437 Cr.P.C. Unmarked case property, if any, shall be destroyed after appeal time.
2 Spl.S.C.No. 87 of 2018
7.Name of the Counsel for the : Sri G. Parandamulu. prosecution
8.Name of the Counsel for the : Sri Syed Fasiyuddin. accused * * *
This case coming on 23.03.2022 for hearingbefore me in the presence of Sri G. Parandamulu, Additional Public Prosecutor for the State/complainant and Sri Syed Fasiyuddin, counsel for accused and having stood over for consideration till this day, the Court delivered the following:-
J U D G M E N T
The Sub-Divisional Police Officer(SDPO), Mahabubnagar filed charge sheet in Cr.No.221/2016 against A1 for the offence punishable under section 366-A, 376(2)(i) and 506 of Indian Penal Code (hereinafter referred as IPC for brevity) and Sec.5 & 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as POCSO Act, for brevity) & Sec.3 (2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred as SCs/STs (POA)
Act in short) and Sec.366-A r/w 109 of IPC against A2 to A4.
2. The facts of the prosecution, in nut shell, are that :
On 28.08.2016 Kethavath Kishan son of Ambriya filed a
Telugu written complaint before Police Balanagar stating that he is resident of Korra thanda he is having two daughters. On 26.08.2016 at about 12:00 noon his wife Bujji came to him and informed him that she gone to take medical help from Upender RMP doctor along with her minor daughter/victim (whose name is not disclosed in view of the bar
U/Sec.228-A of I.P.C and also as guided by the Apex Court in 'State of
Karnataka Vs. Puttaraja – (2004 (3) ALT (Crl.) S.C. Page 6 and Nipun
Sexana Vs. Union of India, 11 th December, 2018)', aged about 14 years for her medical check up, while her medical check up her minor daughter was waiting outside the hospital till her return from the hospital. After completion of medical check up she came out and found her daughter is missing, she searched for her but she in vain. Immediately, both wife and 3 Spl.S.C.No. 87 of 2018 husband searched for their daughter at their relatives and others houses but they in vain.
2.1.Basing on the complaint, A.S.I. of Balanagar registered a case in Cr.No.221/2016 under girl missing and issued FIR. Copy of FIR send to all concerned officers. Later, he examined and recorded the statements of parents of vicitm at police station, visited scene of offence, secured the presence of Vislavath Gopal (LW-7) and Kethavath Badru (LW-8), in their presence he conducted scene of offence panchanama and drawn rough sketch and handed over CD file to higher officers for further investigation.
During the course of investigation the victim has came to the police station along with her mother on 29.09.2016 at about 1:00 p.m., the statement of victim was got recorded by WPC.No.2857. In the statement, the victim stated that she was working at Surya Jyothi company, the accused also working in the same company and got acquaintance wtih her proposed his love and followed her by promosing to marry her. Her parents got stopped her work at the company, later she joined to learn stitching. On 26.08.2016 she along with her mother went to Upendra
Hospital at Balanagar Chowrastha. Her mother went into the hospital then
Kammari Praveen forcibly took her to Alwanpally village of Jadcherla mandal, there he married her in a Shivalayam in the presence of his villagers Boya Chennaiah, D. Kumar, Vadde Shyam by exchanging garlands, Praveen tied thali and nuptials took place. Praveen threatened her if she did not accompany with him as he will kill her and her family members, by saying so he took her to Srisailam kept her in bus stand, on the next day took her to Thirupathi there also he kept her in bus stand for one day from there he brought her to Hyderabad, took a rented room near Gandhi bus stand and participated in sex for several time for 20 days by promising that life long he will look after her well. On 29.09.2016, 4 Spl.S.C.No. 87 of 2018 when Kammari Praveen went to out side, she boarded a bus and came to house at 10:00 a.m., and her mother broght her to police station.
2.2Basing on the strengh of the statement of the victim A.S.I altered section of law from girl missing to Sec.366-A, 376(2)(i) 506 of IPC and Sec.5 & 6 of POCSO Act and Sec.3(2)(v) of SC/ST (POA) Act, 1989 of
IPC and submitted alteration memo to the Hon'ble Court and all the concerned officers, secured the presence of Sabavath Govind (LW-9) and
Korra Heenya (LW-10), in their presence he seized clothes of victim and sent the victim girl to Govt.General Hospital, Mahabubnagar, for medical examination and age determination certificate. Later, P. Krishna Murthy (LW-22, SDPO) took up the further investigation, examined and recorded the statements of parents of victim, visited scene of offence, examined and recorded the statements Kethavath Tharya (LW-4) and Kethavath
Gobriya (LW-5), returned to PS, examined and recorded the statement of
Kum.M.Kusuma Kumari (LW-6 WPC).
2.3.On 30.09.2016 at 3:00 p.m., S.I of police, PS Balanagar apprehended A1 at X-road, Balanagar and produced before P. Krishna
Murthy (LW-22), on interrogation, A1 yet to be confessed his guilt, he secured the presence of Kavali Mallesh (LW-11) and Paspula Chandraiah (LW-12), recorded the confessional statement of A1, after confession he proceeded to second scene of offence panchanama situated at Hyderabad along with A1 and above panchas, there conducted scene of offence panchanama and drawn rough sketch, he sent A1 to Govt. Headquarters
Hospital, Mahabubnagar for potency of A1, after completion of formalities of arrest he produced A1 before Court for judicial remand.
2.4.On 01.10.2016 at 5:00 a.m., S.I. of police Balanagar P.S.
apprehended A2 to A4 at their respective houses brought them to PS and produced before P. Krishna Murthy (LW-22), on interrogation they admitted their guilt, effected their arrest and produced before Court for 5 Spl.S.C.No. 87 of 2018 judicial custody. Subsequently, on 17.12.2016 B.Bhaskar (LW-23, SDPO) took up the further investigation. Dr. Aswini (CAS,LW-13) examined the victim and preserved vaginal swabs for FSL report, after receipt of FSL report, she opined that “The victim may be sexually habituated but there is no evidence of recent intercourse”. Dr. Padmini (LW-14, Dental
Assistant Surgeon) and Dr. Surya Prakash (LW-15, Civil Assistant
Surgeon), Govt.headquarters hospital, Mahabubnagar examined the victim and issued age determination certificate stating that she is under age of 16-17 years. Dr.A.Naga Raju (LW-16, CAS)Govt.PHC Hospital,
Badepally conducted potency test on A1 and issued certificate stating that “There is nothing to suggest that the male examined is not capable of performing sex act”. C. Narsingh Rao (LW-18) Tahsildar, Rajapur issued caste certificate of victim stating that victim belongs to ST (Lambada) and
Smt. V. Rambai (LW-19) Tahsildar Balanagar issued caste certificates of
A1 to A4 stating that A1 belongs to Kammari (BC), A2 belongs to Golla (BC), A3 belongs to Boya (BC) and A4 belongs to Waddera (BC) castes. On 30.07.2016 Sri Ch.A.N.Murthy (LW-17), Judicial Magistrate of First Class,
Shadnagar recorded the statement of Sec.164 Cr.P.C statement of victim.
After completion of entire investigation and after collection of all document, B. Bhasker (LW-23,SDPO) filed charge sheet against A1 for the offence U/Secs.366-A and 376(2)(i), 506 of IPC and U/Sec.5 and 6 of the
Protection of Children from Sexual Offences Act, 2012 and Sec.3(2)(v) of
SC/ST (POA) Act 1989 against A1 and U/Secs.366-A r/w 109 of IPC and
Sec.3(2)(v) of SC/ST (POA) Act 1989 against A2 to A4.
3.The case was taken on file by the I Additional District and
Sessions Court,Mahabubnagar for the offences punishable U/Secs.366-A
and 376(2)(i), 506 of IPC and U/Sec.5 and 6 of the Protection of Children from Sexual Offences Act, 2012 and Sec.3(2)(v) of SC/ST (POA) Act 1989 against A1 and U/Secs.366-A r/w 109 of IPC and Sec.3(2)(v) of SC/ST 6 Spl.S.C.No. 87 of 2018 (POA) Act 1989 against A2 to A4 and numbered as Spl.S.C.No.87/2018.
On appearance of the accused copies of documents as contemplated
U/Sec.207 of Cr.P.C., were furnished to him and examined U/Sec.228
Cr.P.C. On hearing both sides charges were framed for the offences
U/Sec.366-A and 376(2)(i)(n) 506 of IPC and U/Sec.5(l) r/w 6 of the
Protection of Children from Sexual Offences Act, 2012 and Sec.3(2)(v) of
SCs/STs (POA) Act 2015 against A1 and U/Sec.366-A r/w 109 of IPC against A2 to A4, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.
4.To prove the case of prosecution, prosecution examined
PWs.1 to 16 and marked Exs.P1 to P24. No oral or documentary evidence adduced by the defence. The prosecution has given up the evidence of
Kethavath Tharya (LW-4), Dr. Padmini (LW-14) who issued age determination certificate of victim, Sri.Ch.A.N.Murthy (JMFC, LW-17) who recorded Sec.164 Cr.P.C statement of victim, K. Arun Jyothi (director of
FSL, LW-20) and B. Bhaskar (LW-23, IO). Kethavath Kishan (LW-1) died and report filed by police, hence this Court closed his evidence.
PW-1 is mother of victim. PW-2 is victim. PW-3 and PW-7 are panch witnesses for first scene of offence panchanama. PW-4 and PW-8 are panch witnesses for seizure of clothes of victim. PW-5 is woman police constable who recorded the statement of victim. PW-6 is caste elder. PW-9 and PW-10 are panch witnesses for confession panchanama of accused and also second scene of offence panchanama. PW-11 and PW-14 are medical officers who examined the accused and victim respectively. PW-12 is Tahsildar who issued caste certificate of A1 to A3. PW-13 is investigating officer who issued F.I.R. PW-15 is medical officer who issued medical age certificate of victim. PW-16 is investigating officer who filed charge sheet.
5.There upon, the accused were examined U/Sec.313(1)(b)
Cr.P.C., with regard to incriminating evidence found against them, they 7 Spl.S.C.No. 87 of 2018 denied the said evidence and reported that they have no defence evidence on their behalf.
6. Heard arguments of the learned public prosecutor and learned counsel for the accused.
7.Now the following points arise for determination:
Whether the prosecution proved the guilt of A1 for the offences punishable U/Sec.366-A and 376(2)(i)(n) 506 of IPC and U/Sec.5(l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 and Sec.3(2)(v) of SCs/STs (POA) Act 2015 and the guilt of A2 to A4 for the offence punishable U/SEc.366-A r/w 109 of IPC beyond all reasonable doubt?
8.Mother of the victim Kethavath Bujji examined as PW-1, she stated that Kethavath Kishan (LW-1) is her husband who died at about 6 months back due to Covid-19. LW-3 victim is her daughter. She is having 3 daughters and a son. Victim is her younger daughter. Tharya (LW-4) is her brother-in-law, at present victim is aged about 21 years, she is an illiterate. She do not know the accused. Her daughter used to attend cotton work at Balanagar. Nothing was happened and she resiled from her previous statement. Her cross-examination will not help the prosecution.
Victim (PW-2) stated that at about 2 years back her marriage was performed with one Suman who is no other than her paternal aunt’s son.
Her father Kishan died at about 6 months back, PW-1 is her mother,
Tharya is her senior paternal uncle. Her statement was not recorded by police. She can write in Telugu. The signature in 164 Cr.P.C statement is belongs to her and she turned hospital and her cross-examination will not help the prosecution. Kethavath Badru (PW-3), Korra Heenya (PW-4),
Gopal (PW-7), Govind (PW-8), Mallesh (PW-9) and Chandraiah (PW-10) are all the panch witnesses for first and second scene of offence panchanamas and seizure of clothes of victim panchanama were turned hostile. They stated that their signatures were obtained by the police, except that they do not know anything. Kusuma (PW-5) stated that she examined and recorded the statement of victim on 29.09.2016. Gobriya 8 Spl.S.C.No. 87 of 2018 (PW-6) stated that he do not know PWs.1 and 2 and all the accused, he was not examined by the police at any point of time. Dr.A.Nagaraju (PW-
11) stated that on 01.10.2016 he examined A1 and opined that A1 is nothing to suggest that the individual is examined is not capable of performing of act of sexual intercourse. V. Ram Bai (PW-12) Tahsildar Mahabubnagar stated that on 16.09.2017 she enquired about A1 to A4 and issued caste certificates of A1 to A3, according to her enquiry, A1 to A3 are belong to BC but she has not mentioned the caste of
A4. Syed Laiq Ali (PW-13) ASI of police, Balanagar PS stated that on 28.08.2016 at about 12:00 noon he received a written complaint from
Kethavath Kishan, basing on it issued FIR in Cr.No.221/2016 under girl missing. During course of investigation he examined and recorded the statements of LWs.1 and 2 on the same day at 2:00 p.m., he proceeded towards Santha bazaar Balanagar opposite to Upendra Hospital and he secured two panchas namely Vislavath Gopal(PW-7) and Kethavath Badru (Pw-3) and conducted scene observation panchanama and drafted rough sketch. On 29.09.2016 at about 3:00 p.m., the victim voluntarily came to
P.S., then he secured the presence of WPC.2857, got recorded the statement of victim, later C.D. file is handed over to Krishnamurthy (PW-16).
9.Dr.Ashwini (PW-14) stated that on 30.09.2016 at 10:50 a.m., she received a requisition from PS Jadcherla, accordingly, she examined the victim and given her final opinion stating that the victim is sexually habituated but she has not find any recent evidence of sexual intercourse.
10.Dr.Surya Prakash (PW-15) stated that on 04.10.2016 he examined the victim, he obtained X-Rays of elbow, wrist, knee joint and pelvis of the victim, basing on it he opined that the victim is aged about 16-17 years as per oral statement of victim she is aged about 14 years.
11.P.Krishnamurthy (PW-16) Additonal Superintendent of Police, stated that on 29.09.2016 vide proceedings C.No.141/C3/IO-Apt/DCRB- 9 Spl.S.C.No. 87 of 2018 2016 he took up the investigation, rushed to Balanagar and recorded the statements of parents of victim, secured the presence of WPC.No.2857 got recorded the statement of victim, he also recorded the statements of
PW-5, he visited scene situated at Korra thanda, observed the scene, on the same day he also recorded the statements of WPC. He made a requisition to JMFC, Shadnagar requesting to record the statement of victim U/Sec.164 Cr.P.C., he also made requisition to hospital for examination of the victim so also for determination of age of victim. On 30.09.2016 as per his directions, S.I Balanagar apprehended A1 at cross- roads Balanagar, produced A1 before him, on interrogation A1 yet to be confessed, then he secured Kavali Mallesh and P. Chandraiah, recorded the confessional panchanama of A1, he also conducted scene observation panchanama at MGBS Hyderabad, he brought A1 to Mahabubnagar and sent him to Govt.hospital for potency test. He also made a requisition to
Tahsildar for assertion of caste. Subsequently, on 01.10.2016 he made arrest of A2 to A4, on compliance of formalities of arrest he produced A1 to A4 before the Court for judicial remand. After completion of entire investigation he filed charge sheet for the offence U/Sec.366-A, 376(2)(i) and 506 of IPC and Sec.5 r/w 6 of POCSO Act, Sec.3(2)(v) of SC/ST (POA) Act, against A1 and Sec.366-A r/w 109 of IPC and Sec.3(2)(v) of SC/ST (POA) Act, against A2 to A4.
12.The learned public prosecutor submitted that the accused
No.1 is having acquaintance with the victim, he proposed his love and took her from Santha Bazaar Balanagar to Alwanpally village of Jadcherla at 4:00 p.m., they married in a Shivalayam in the presence of their villagers Boya. Chennaiah, D. Kummar and Wadde Shyam, later, A1 forced her to be with him on threaten and he took her to Srisailam and taken shelter in bus stand, on the next day they gone to Thirupathi from there they returned to Hyderabad and obtained a room near Gandhi Bus Stand, thereafter he committed rape on her and they spent for 20 days at 10 Spl.S.C.No. 87 of 2018
Hyderabad, in the absence of accused No.1 the victim returned to her parents' house by rescuing herself from the accused and she reached thanda at 10:00 a.m., later she informed the same to her mother thereby
A1 committed offence, her 164 Cr.P.C statement also recorded by the
JMFC, Shadnagar, hence all the accused are liable for punishment.
13.The learned counsel for the accused submitted that the accused are no way concerned with the victim, they do not know any case, they never performed any marriage of A1 with the victim, the police foisted a false case against them except that they do not know anything and there is no evidence laid against them, accordingly they are liable for acquittal.
14.In this back drop this Court has to consider whether the victim is a child under Sec.2(1)(d) of POCSO Act, 2012. Mother of the victim examined as PW-1 she narrated that the victim is her elder daughter apart from her she is having another daughter and a son, at the time of incident she might be 14 years, the victim (LW-3/PW-2) stated that at present she is 20 years, at about 2 years back her marriage was performed with Suman. Admittedly she is an illiterate and she never gone to any school and her date of birth was not recorded in anywhere, therefore the victim send to government hospital for medical examination, on requisition doctor Surya Prakash (LW-15/PW-15) conducted ossification test, as per his examination he opined the age of the victim might be 16-17 years but the victim orally stated that she is 14 years of age. At this stage, in the absence of any date of birth certificate the Court can rely on ossification test of the victim conducted by PW-15 and issued Ex-P20 wherein he found age of the victim might be 16-17 years as on the date of examination i.e., on 04.10.2016. Therefore, the age of the victim is under 18 years and she is a child as per Sec.2(1)(d) of
POCSO Act, 2012.
11 Spl.S.C.No. 87 of 2018
15.The learned counsel for the accused submitted that Sec.3(2)
(v) of SC/ST (POA) Act is not applicable to the accused No.1, hence a benefit of doubt can be given to A1 for the said offence.
16.On perusing the record on hand as per the contents of Ex-P14 written complaint said to have been filed by father of the victim never disclosed that the accused No.1 took the victim knowing that she belongs to ST community with an intention to cause damage the life of victim, married her and spoiled the life of the victim, even the evidence of PWs.1 and 2, they never stated before the Court or even before investigating officer that the A1 is having knowledge of the caste of the victim and intentionally he took her forcibly from the lawful guardianship. Ram Bai (PW-12) Tahsildar Mahabubnagar enquired, on requisition given by the police and found the caste of A1 to A3 belong to BC, but, she has not made any enquiry to know the caste of A4. Ex-P13 is the caste certificate of A1 to A3, no doubt A1 to A3 may belong to BC community but the intention of accused is not proved by the prosecution.
17.The prosecution submitted that the victim is belongs to
Lambada community therefore, the offence committed by A1 is punishable U/Sec.3(2)(v) of SC/ST (POA) Act, 1989. The learned counsel for the defence submitted that mere statement that the victim belongs to
Lambada community is not that of the prosecution proved the offence
U/Sec.3(2)(v) of SC/ST (POA) Act, 1989, the prosecution not adduced any evidence to prove the ingredients of Sec.3(2)(v) of SC/ST (POA) Act, 1989, hence the accused is liable for acquittal. At this stage the learned counsel
for accused relied on Patan Jamal Vali Vs. State of A.P. in
Crl.A.No.452/2021, the Hon’ble Apex Court held that
“The key word on the ground that such a person is a member of SC and ST the expression on the ground means “for the reason” or “on the basis” to be proved. It must be alleged in the FIR that the victim belongs to SC and ST caste which is why rape was committed only in the absence of those ingredients of Sec.3(2)(v) 12 Spl.S.C.No. 87 of 2018 of SC/ST (POA) Act, 1989 cannot be attracted just because of victim belongs to the caste”.
The same ratio is rightly applicable in the present case on hand in the FIR there is no recital that A1 exploited or committed offence because the victim belongs to SC or ST community and there is no whisper in entire evidence of prosecution that the accused taken advantage of the caste of the victim and committed offence. In the absence of ingredients of Sec.3(2)(v) of SC/ST (POA) Act, 1989 the Court cannot safely conclude that the accused committed offence Sec.3(2)(v) of
SC/ST (POA) Act, 1989 denotes that
3. Punishments for offences atrocities
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled
Tribe,—
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
And the ingredients are :
(1) The offence is committed by a person who is not a member of SC or ST (2) The offence arising under IPC is against a person or property and is punishable with imprisonment for a term or 10 years or more.
(3) The offence is committed on the ground that such person is a member of SC and ST as such property belongs to such person.
Therefore, the third ingredient for the reason or basing on the reason is not proved. Therefore, the prosecution failed to establish that
A1 and A2 committed offence Sec.3(2)(v) of SC/ST (POA) Act, 1989.
13 Spl.S.C.No. 87 of 2018
18.In the above circumstances the prosecution not proved that the accused No.1 intentionally took the victim from her lawful guardianship and there is no iota of evidence to believe the version of prosecution, hence a reasonable doubt can be raised against the case of prosecution.
19.The case of the prosecution is that Kishan (LW-1) died at about 6 months back due to Covid. PW-1 is no other than mother of the victim, as per the case of the prosecution the victim was taken by the accused from Santha Bazaar when she was waiting out side of the
Upendra RMP clinic and PW-1 gone into the clinic for her medical check up. The prosecution not examined the so called Upender and no body was examined to know about the presence of victim at Santha Bazaar even
PW-1 is not supported the case of prosecution as well as the victim also turned hostile. The evidence of PWs.1 and 2 is not supporting the case of prosecution and their cross-examination conducted by prosecutor will not help at any stretch. There is no believable evidence placed before the
Court by the prosecution that the victim was out of her guardianship for a period of 20 days and no evidence laid to believe that the accused No.1 taken her forcibly out of her parents and A2 to A4 helped to A1 in taking the victim from Balanagar to Jadcherla thereafter Srisailam, Thirupathi and Hyderabad and no oral or documentary evidence placed to believe the version of prosecution.
Sec.366-A of IPC Procuration of minor girl –
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
20.The prosecution failed to prove the ingredients of kidnapping of minor girl from her lawful guardianship by the accused No.1 to 4.
14 Spl.S.C.No. 87 of 2018
Hence, benefit of doubt can be given to the accused against the prosecution.
21.The learned public prosecutor submitted that the accused
No.1 committed rape on the victim by saying that he married her in
Shivalayam at Alwanpally village of Jadcherla in the presence of A2 to A4 and thereby he committed rape on her for a period of 20 days. The consent of minor is not valid U/Sec.90 of IPC, therefore, A1 is liable for punishment for the offence U/Sec.376(2)(i)(n) of IPC and Sec.5(l) r/w 6 of
POCSO Act, 2012.
22.The learned counsel for the accused submitted that the victim never stated before Court any alleged rape committed by A1 against the victim and there is no evidence placed by the prosecution that A1 married her and committed rape on the victim for a period of 20 days as stated by the prosecution.
23.As per the case of prosecution the victim was taken by A1 along with A2 to A4 from Balanagar to Jadcherla, Sriailam, Thirupathi and
A1 kept the victim in a rented room at Hyderabad near MGBS for which the investigating officer made scene observation panchanama at MGBS in the presence of K. Mallesh (LW-11/PW-9) and P. Chandraiah (LW-12/
PW-10) while examining them they turned hostile, their signatures were marked. According to the prosecution in their presence A1 also confessed his guilt but the above two panchas were not supported the case of prosecution they stated that the police obtained their signatures at
Balanagar and they do not know anything about the case except obtaining their signatures no panchanama was conducted by the police.
Therefore, the prosecution failed to establish that the accused No.1 kept the victim at Hyderabad in a rented house for a period of 20 days. The witness K. Gobriya (LW-5/PW-6) is not supported the case of prosecution and he turned hostile his cross-examination will not hep the prosecution.
15 Spl.S.C.No. 87 of 2018
Except PW-6 no other witness was examined by the prosecution.
Therefore, the prosecution failed to prove the confessional panchanama of A1 and scene of offence panchanama said to have been conducted at
Hyderabad. It further found on the record the victim never told before the
Court A1 never put up victim in a rented room near MGBS. In the absence of believable evidence the Court cannot come to conclusion that A1 took the victim and kept her in a rented room near MGBS at Hyderabad and participated in sexual intercourse. The clothes of victim were seized in the presence of two panchas by the police and sent them for chemical examination so also the victim was sent to government hospital for medical examination. Ashwini (PW-14) was examined the victim on 30.09.2016, as per her opinion there is no evidence of recent sexual intercourse. Therefore, the final opinion of the doctor is corroborating with the hostileness of the victim and other witnesses. Therefore, there is no even medical evidence found on the clothes of the victim against A1, therefore the medical evidence corroborating with the evidence of other witnesses including the victim shows that A1 is not participated in any sexual intercourse with the victim.
Sec.375 of IPC Rape – A man is said to commit "rape" if he –
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First . Against her will. Secondly . Without her consent.
16 Spl.S.C.No. 87 of 2018
Thirdly . With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly . With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly . With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly . With or without her consent, when she is under eighteen years of age. Seventhly . When she is unable to communicate consent.
Explanation 1 . For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2 . Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1 . A medical procedure or intervention shall not constitute rape.
Exception 2 . Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Section 376(2)(i)(n) in The Indian Penal Code (2) whoever
(i) commits rape on a woman when she is under 16 years of age
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but may extend to imprisonment for life i.e., the imprisonment for the remainder of natural life and also with imposition of fine.
Section 5 of Protection of Children from Sexual Offences Act, 2012 :
Aggravated penetrative sexual assault
(a) to (k)……………
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or
Sec.6 punishment for aggravated penetrative sexual assault 17 Spl.S.C.No. 87 of 2018 (1) whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extended to imprisonment for life, which shall mean imprisonment for the reminder of natural life of that person and shall also be liable to fine or with death. (2) the fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation for such victim. Prior to that Sec.6 is as follows:
Sec.6 Punishment for aggravated penetrative sexual assault – Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may ex- tended to imprisonment for life and shall also liable to fine.
The above amendment 16.08.2019 is not applicable in the case on hand as the offence took place on 26.08.2016. The act is silent for its applicability as it is retrospective or prospective. It is settled law when the applicability of the Act is silent then the Court considered as it is prospective. Therefore, the accused shall punished with rigorous impris- onment for a term of 10 years.
24. Therefore, the ingredients of Sec.375 of IPC and Sec.5(l) of
POCSO Act is not proved. Therefore, there is no believable evidence placed by the prosecution against the accused that A1 committed offence
U/Sec.376(2)(i)(n) of IPC and Sec.5(l) r/w 6 of POCSO Act, 2012, and benefit of doubt can be given to the accused.
25.In the result, A1 found not guilty for the offences punishable
U/Sec.366-A and 376(2)(i)(n) 506 of IPC and U/Sec.5(l) r/w 6 of the
Protection of Children from Sexual Offences Act, 2012 and Sec.3(2)(v) of
SCs/STs (POA) Act 2015 and A2 to A4 are found not guilty for the offence punisable U/Sec.366-A r/w 109 of IPC . accordingly, he is acquitted
U/Sec.235(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after six months U/Sec.437 Cr.P.C. Unmarked case property, if any, shall be destroyed after appeal time.
18 Spl.S.C.No. 87 of 2018
Typed to my dictation by the Stenographer Gr.II on computer system, corrected and pronounced by me in the open Court, on this the 23rd day of March, 2022.
II Addl.District and Sessions Judge (FTC), Mahabubnagar, FAC, The Fast Track Special Court for Expeditious Trial and Disposal of
Rape and POCSO Act Cases,
Mahabubnagar.
APPENDIX OF EVIDENCE:
WITNESSES EXAMINED FOR
PROSECUTION:
PW-1: Kethavath Bujji.
PW-2: Victim (the name is not disclosed as barred U/s 228-A of IPC and as observed by the Apex Court in State of Karnataka Vs. Puttaraj (2004 (2) ALT (SC) 6) as discussed in para 2 of the judgment).
PW-3: Kethavath Badru. PW-4: Korra Heenya. PW-5: Smt. Kusuma. PW-6: Kethavath Gobriya. PW-7: Vislavath Gopal. PW-8: Sabavath Govindu.
PW-9: Kavali Mallesh. PW-10: Chandraiah. PW-11: Dr. A. Naga Raju. PW-12: B. Ram Bai. PW-13: Syed Laiq Ali. PW-14: Dr. Ashwini. PW-15: Dr. Surya Prakash. PW-16: P. Krishna Murthy.
DEFENCE: -None-
EXHIBITS MARKED FOR
PROSECUTION:
Ex-P1: Sec.161 Cr.P.C., statement of PW-1. Ex-P2: Sec.161 Cr.P.C., statement of PW-2. Ex-P3: Sec.164(5) Cr.P.C., statement of PW-2. Ex-P4: Signature of PW-4 on seizure panchanama of clothes of victim. Ex-P5: Sec.161 Cr.P.C., statement of PW-6. Ex-P6: Signature of PW-7 on scene of offence panchanama. Ex-P7: Signature of PW-8 on seizure panchanama of clothes of victim.
Ex-P8 and Ex-P9: Signatures of PW-9 on second scene of offence panchanama.
Ex-P10 and Ex-P11: Signatures of PW-10 on second scene of offence panchanama.
Ex-P12: Potency test report. Ex-P13: Caste certificate of A1 to A3. Ex-P14: Written complaint.
19 Spl.S.C.No. 87 of 2018
Ex-P15: First Information Report. Ex-P16: Crime Detailed Form along with rough sketch, dt.28.08.2016. Ex-P17: Preliminary examination report. Ex-P18: Forensic Science Laboratory Report. Ex-P19: Final opinion. Ex-P20: Age certificate of victim. Ex-P21: Confession panchanama of A1.
Ex-P22: Scene observation panchanama at MGBS Hyderabad, dt.30.09.2016.
Ex-P23: Caste certificate of victim. Ex-P24: Age determination certificate of victim.
DEFENCE: NIL.
MATERIAL OBJECTS MARKED: NIL.
II Addl.District and Sessions Judge (FTC), Mahabubnagar,
FAC, The Fast Track Special Court for
Expeditious Trial and Disposal of
Rape and POCSO Act Cases,
Mahabubnagar.
IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE
(FTC), MAHABUBNAGAR
FAC IN THE COURT OF FAST TRACK SPECIAL SESSIONS JUDGE'S
COURT FOR EXPEDITIOUS TRIAL AND DISPOSAL OF RAPE AND
POCSO ACT CASES :: MAHABUBNAGAR
1. Case.No. Spl.SC.No.87 of 2018
2. Name of the station P.S.Balanagar.
3. Name of the accused.
A-1. Kammari Praveen Kumar S/o. Srinivasulu, Age 23 years, Caste: Kammari, Occ: Worker at Surya Jyothi Spinning Mills, Burgula, R/o: Gouthapur village, Balanagar Mandal. A-2. Golla Kumar S/o. Yadaiah, age 23 years, Caste: Golla, Occ: JCB Driver, R/o: Gouthpur village, Balanagar Mandal. A-3. Boya Chennaiah S/o. Ramulu, age 21 years, Caste: Boya, Occ: Agriculture, R/o: Gouthapur village, Balanagar Mandal. A-4. Wadde Syam Prasad @ Wadde Shyam S/o. Venkatesh, age 20 years, Caste: Waddera, Occ: Private Job, R/o: Gouthapur village, Balanagar Mandal.
4.Date of:
1Occurrence 2Complaint 3Apprehension 4Released on bail 5Commitment- 6Commencement of trial 7Close of trial 8Sentence or order/judgment.23.03.2022
Sentence or order/judgment.
In the result, A1 found not guilty for the offences punishable U/Sec.366-A and 376(2)(i)(n) 506 of IPC and U/Sec.5(l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 and Sec.3(2)(v) of SCs/STs (POA) Act 2015 and A2 to A4 are found not guilty for the offence punisable U/Sec.366-A r/w 109 of IPC . accordingly, he is acquitted U/Sec.235(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after six months U/Sec.437 Cr.P.C. Unmarked case property, if any, shall be destroyed after appeal time.
Explanation for delay : --
II Addl.District and Sessions Judge (FTC), Mahabubnagar,
FAC, The Fast Track Special Court
for Expeditious Trial and Disposal of
Rape and POCSO Act Cases,
Mahabubnagar.