1 POCSO S.C.28/2014
IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE AT VIZIANAGARAM
Present:- Sri K.V. Ramanaji Rao, I Addl. Sessions Judge, Vizianagaram
Wednesday, this the 3rd day of February, 2016.
SESSIONS CASE No. of 201
P.O.C.S.O. 28 4 Name of the ComplainantState, represented by the Inspector of
Police, Salur Circle, Salur.
Name of the accused Penta Chinnam Naidu, s/o Satyam Naidu, 19 years, K.Velama, Thotavalasa village, Makkuva Mandal, Viziananagaram District.
Charges Charge under Section 342. 376 IPC and Section 4 of Protection of Children from Sexual Offences Act, is framed against the accused
Plea of the accused Accused pleaded not guilty
Finding of the Judge Accused is found guilty for the offence under Sections 342, and 376 IPC and under Section 4 of the Protection of Children from Sexual Offences Act, Sentence or order In the result, the accused is convicted under Section 235 (2) of
Cr.P.C., and he is sentenced to undergo minimum punishment of TEN (10) Years
Rigorous Imprisonment and also to pay a fine of Rs.5,000/- and in default of payment of fine, he shall suffer Simple imprisonment for three (3) months, for the offence under section 376 (2)
(i) of IPC
In the result, accused is convicted under Section 235 (2) of
Cr.P.C.,and he is sentenced to undergo
RIGOROUS IMPRISONMENTfor a period of one (1) year, for the offence under Section 342 of IPC.
2 POCSO S.C.28/2014
In the result, accused is convicted under Section 235 (2) of
Cr.P.C., and the he is sentenced to undergo RIGOROUS IMPRISONMENT for a period of TEN (10) years and to pay a fine of Rs.5,000/- and in default of payment of fine, he shall suffer Simple imprisonment for three (3) months for the offence under Section 4 The
Protection of Children from Sexual
Offences Act.
It is further ordered that all the sentences of imprisonment imposed for all of the offences is ordered torun concurrently (simultaneously).
M.Os. 1 to 5 and unmarked property, if any, is ordered to be destroyed after appeal time is over, since it has no value.
It is further ordered that the remand period undergone by accused (from 01.01.2014 to 22.01.2014) is ordered to be set off under Section 428
Cr.P.C.
Accused is informed that he has got right to prefer appeal before the
Honourable High Court.
FINE AMOUNT OF Rs.10,000/- IS PAID
ON 03.02.2016.
Prosecution conducted byAddl.Public Prosecutor, Vizianagaram.
Defence conducted bySri Ch.Rambabu, Advocate for accused
J U D G M E N T
3 POCSO S.C.28/2014
The State represented by the Inspector of Police, Salur
Circle, Salur, filed the charge sheet against the accused for the offence under Section 376 and 342 IPC and under Section 4 of Protection of
Children from Sexual Offences Act, in Crime No. 60/2013 of Makkuva
Police Station.
2.The matrix of the prosecution case as per legal evidence let in during the trial is as follows:
The victim girl who is studying 10th class and who is aged 15 years. On 26.12.2013 at about 6.30p.m., while she was present at her house she came to know that one Sri P.Srinu was met with a snake bite and she along with other villagers came to the house of Sri
Penta Srinu, which is opposite to her house. After some time, all the villagers left away to their houses. At that time, the accused, who is neighbour of the said Sri Penta Srinu, called her who is alone present at that time in his house and she went to the house of accused and on watching TV, she compared the accused with the singer, who is singing songs by saying that the singer is like him. Later the accused caught hold of her hand and pulled her into his house and thrown her on the cot. When she raised cries, the accused closed her mouth and committed rape on her, without her consent. In the meanwhile, the mother of the victim girl viz., Smt. Chukka Uma (PW2) came there to fetch milk and heard the sounds (mulugulu) of victim girl and knocked the doors of the room of accused and the accused asked the victim girl to go outside from the backside of the house and she left the house through backyard of the house of accused. The mother of the victim girl also witnessed committing rape by accused on the 4 POCSO S.C.28/2014 victim girl through the gap between the doors and knocked the doors forcibly and her bangles were broken and she also received injuries on the hands on the wrist.
3.Ultimately, the accused opened the bolt from inside and when the mother of the victim girl questioned, why he has committed rape on her daughter and then the accused harshly stated that “Emai poyindi Ippudu” and also stated “Emi chesukuntavo chesuko”. The victim girl (PW1) left to her maternal grandfather’s house Sri Chukka
Suryanarayana (PW7), who also returned to his house at that time.
Meanwhile the mother of the victim girl went to her father’s house and found the victim girl shivering due to fear and after seeing her, she questioned the victim girl and she revealed the entire incident and she also stated to her that she already witnessed the incident through the gap between the doors of the house, while committing rape by accused on the victim girl. The victim girl informed the incident to the elders Sri V. Appalanaidu ( L.W.8 not examined), Sri J. Ganapati (L.W.7 not examined) and Sri G.Satyam Naidu, Surpanch (PW8) and others, for which Sri Chukka Suryanarayana (P.W7), who is maternal grandfather of victim girl (P.W.1) attended the said panchayat and in the meanwhile the mother of the accused also joined the panchayat.
Then the mother of the victim girl told the incident to the panchayat elders and the panchayatdars questioned the accused about the incident before whom the accused admitted the incident and the father of the accused also admitted that the accused committed sin, but the mother of the accused who joined in the middle, alleged that the victim girl (PW1) committed theft of four tulas of gold from her 5 POCSO S.C.28/2014 house. But the father of the accused chastised the mother of accused.
Then the accused and his father told that they are ready to perform the marriage of accused with the victim girl, but P.W.2 not agree for the said proposal.
4.Later on the next day after thinking about the future of the victim girl (PW1) , they told to give security for the life of victim girl (PW1) by giving three acres of land in the name of victim girl and then only they would agree to perform the marriage of victim girl (PW1) with the accused. But the parents of accused did not agree for the said proposal and told to do what so ever and the panchayat was held for two days and thereupon, the victim girl and her mother went to the police station and the victim girl gave report (Ex.P.1) to the Sub
Inspector of Police (PW18) at 8.30 a.m., on 28.12.2013, who registered the same as a case in crime No. 60/2013 under section 376, 342 IPC and send the registered FIR (Ex.P.11) along with Ex.P.1 report to the
Magistrate and copies to the higher officials and he also informed the
same to the Inspector of Police Sri G. Demullu, who took up investigation who visited scene of offence in the presence of mediators Sri Choppa Srinivasa Rao (not examined) and Sri G. Satyam
Naidu (PW8) under the cover of mediator’s report(Ex.P.2) and examined the witnesses and recorded their statements and sent the victim girl along with her mother to the hospital for examination with escort.
5.The medical Officer Dr.B.Appala Naidu (PW14) examined the mother of the victim girl (PW2) on 28.12.2013 at about 7.30 p.m., and found a small abrasion blackish red in colour over left forearm 6 POCSO S.C.28/2014 near wrist 1 x ½ cm linear abrasion and 0pined that the injury is simple in nature and the age of the injury is 36 to 60 hours prior to his examination and issued certificate (Ex.P.13) to that effect.
6.Dr.V.R. Meenakshi, Civil Assistant Surgeon, Community
Health Centre, is examined as P.W.13, who examined the victim girl (PW.1) on 28.12.2013 at about 6 p.m., and found no external injuries on the private parts of victim girl and no injuries on her body and admitting one finger, vagina orifice healthy, no bleeding, no tear on vagina and the vaginal orifice is 2 x 2 cm and she collected pubic hair, vaginal swab and under wear and she gave preliminary report (Ex.P.10) to that effect. She also deposed that after receipt of RFSL report she gave final opinion (Ex.P.11) that the victim girl might have had sexual intercourse basing on RFSL report (Ex.P.12) and as per
RFSL item Nos.3 and 8, it contain human semen and spermatozoa.
7.On 28.12.2013 at about 10.00 a.m., the mediators also came to the police station and the victim girl (PW1) and mother of the victim girl Smt. Chukka Uma (PW2) also came to the police station at 10 a.m., and the victim girl produced her cloths (M.O.1 to 3) which were wore at the time incident, and the same were seized by the
Inspector of Police, in the presence of mediators under the cover of mediator’s report (Ex.P.2).
8.The Inspector of Police, visited the scene of offence in the presence of mediators and got prepared scene observation report (Ex.P.3) and SSC Certificate (Ex.P.16) of the accused under the cover of scene observation report and he also prepared rough sketch of the 7 POCSO S.C.28/2014 scene of offence through a photographer Sri P. Raju (PW10) who took bunch of photos (Ex.P.6) and negative C.D.(Ex.P.7)
9.The investigating officer also examined some other witnesses and recorded their statements and later he made a requisition for alteration of section of Law to section 4 of Protection of
Children from Sexual Offices Act under a memo (Ex.P.18) and examined the other witnesses and examined Smt.Siripuram
Deevenamma (PW9) Head Mistress, ZPH School, who produced study certificate (Ex.P.4) of the victim girl mentioning the Date of Birth of victim girl as 8.5.1999 and issued certificate (Ex.P.4) to that effect , which reveals that the victim girl (PW1)studied in their school from 6th to 10th standard.
10.On 31.1.2014 the investigating officer arrested the accused at Church Centre, Makkuva in the presence of Sri Marada Eswararao (PW12) and Sri Pola Apparao (PW11) and in their presence he got recorded the confession the statement of the accused and the accused lead them to their house and produced long shirt and under wear (drawer) i.e., M.Os.4 and 5 and the mediators signed on the said report (relevant portion for recovery of said material objects is marked as
Ex.P.19).
11.The investigating officer sent the accused to the hospital for medical examination. Dr.S.V. Ramana Murthy (PW.16) on 31.12.2013, he conducted potency test of accused and opined that there is no reason, to say, that the accused is impotent and to that effect he issued certificate (Ex.P.14). The investigating officer send the accused to the court for remand to judicial custody and sent the material 8 POCSO S.C.28/2014 objects through Sub Divisional Police Officer with letter of advise and after receipt of RFSL report and after obtaining medical certificate and after completion of investigation, filed charge sheet against the accused.
12.This being a Special Court, the case was taken cognizance for the offence under Section 376 and 342 IPC and under Section 4 of
The Protection Of Children from Sexual Offences Act, since the
Prosecutrix is a minor girl, which falls under Special Act “The Protection
Of Children from Sexual Offences Act against the accused.
13.After apprehension of the accused and upon consideration, a charge is framed under section 342 and 376 IPC and under Section 4 of The Protection Of Children from Sexual Offences Act, 2012, against the accused. Accused abjured the guilt and claimed to be tried.
14.To substantiate the accusation, the prosecution in all, examined P.Ws.1 to 18 witnesses and Exs.P.1 to P.19documents were marked, besides marking M.os.1 to 5.
15After closure of the prosecution evidence, accused is examined under section 313 Cr.P.C. The plea of the accused is of total denial as stated in 313 Cr.P.C., examination. As accused could not be acquitted under Section 232 Cr.P.C., he is required to enter into defence, but he stated that he has no defence witnesses.
16.Heard arguments from both sides.
Now the points for determination in this case are ; (1) Whether the Prosecutrix is “Child” within the definition of section 2(d) of protection of children from sexual offences Act, 2012 ?
(2) Whether the accused wrongfully confined the victim girl with an intention to commit an 9 POCSO S.C.28/2014 offence, and thereby committed an offence under section 342 of IPC ? (3) Whether the accused committed Rape on the victim girl and thereby committed an offence under section 376 IPC?
(4) Whether the accused made penetrative sexual assault upon the victim girl who is a child and thereby committed an offence under section 4 of Protection Of Children from Sexual Offences Act ?
17. .POINT NO.1 :
Whether the Prosecutrix is “Child” within the definition of section 2(d) of protection of children from sexual offences Act, 2012 ?
While recording the evidence of victim girl, the Court has taken all precautions and followed the procedure as contemplated under section 37 of POCSO Act, and she was examined in Camera and she deposed as P.W.1 in her evidence that, she is studying inter 2nd year and she was born on 8.5.1999. The alleged incident took place on 26.12.2013. It is suggested toPW1 in the cross examination that she is aged 20 years, at present i.e., she is aged 18 years as on the date of offence.
18.The prosecution has filed Ex.P.5 study certificate mentioning the Date of Birth of victim girl as 8.5.1999, as deposed by
PW1 herself. The Head Mistress of ZP High School is examined as
P.W.9, who deposed in her evidence that the victim girl studied in their school from 6th to 10th standard.
19.The learned counsel for accused argued that there is no ossification test conducted to the victim girl by the investigation agency and therefore, the date of birth as spoken by the P.W.1, cannot be believed. As per the evidence of P.W.1, that she is aged 14 years 10 POCSO S.C.28/2014 as on the date of offence. Now, the accused contended that the victim girl (PW1) is aged 18 or 19 years.
20.In order to come under the definition of “child” under section 2(d) of Protection of Children from Sexual Offences Act, the girl must be below 18 years of age. Therefore, there is margin of four years. The learned counsel for accused pointed out the evidence of
P.W.1, who deposed in the cross examination at page No.4 of her deposition that, when she was ten months old, her mother took divorce from her father. P.W.2, who is mother of victim girl deposed that one month after attaining puberty, she was married with one Ramana and she lived with the said Ramana for three years, later they separated.
P.W.1 deposed in cross examination that during her childhood, her mother took divorce from her father and she was aged 10 months old by that time, as she heard. Therefore, it is argued that PW1, must be around 19 years only, since PW2 gave birth at the age of 16 or 17 years to her and she is aged 40 years i.e., 38 years by the date of offence and therefore, PW1 must be aged 19 years. The said contention cannot be accepted when the study certificate and other cogent evidence in the present case, establishes that PW1 is aged only 14 years as on the date of offence and she also does not appear to be a major, as observed by this Court. More over, the medical officer, who examined the victim girl (PW1) also mentioned in the accident register and wound certificate which are Exs.P.10 and Ex.P.11, that the age of the victim girl (PW1) is 15 years. Therefore, there is no hesitation to come to conclusion that the victim girl (PW1) is a “Child” 11 POCSO S.C.28/2014 within definition of section 2(d) of Protection of Children from Sexual
Offences Act. Accordingly, the point No.1 is answered.
21.POINTS 2 TO 4 :
Whether the accused wrongfully confined the victim girl with an intention to commit an offence, and thereby committed an offence under section 342 of IPC ?
Whether the accused committed Rape on the victim girl and thereby committed an offence under section 376 IPC?
Whether the accused made penetrative sexual assault upon the victim girl who is a child and thereby committed an offence under section 4 of Protection Of Children from Sexual Offences Act ?
22.In the present case, the victim girl who is examined as
P.W.1, deposed in her evidence that she is studying 10th class by the date of offence and on 26.12.2013 at about 6.15 or 6.30 p.m., she went to see Sri Penta Srinu who is residing opposite to their house, who sustained snake bite in the fields and who was brought to the house and the other villages also went to see the said Sri Penta Srinu who met with snake bite. P.W.2 who is mother of victim girl (PW1) also deposed of the same. Both of them further deposed that all the villagers went to see Sri Penta Srinu and later he was shifted to hospital on a bike and later all of them went away to their houses. The wife of the said Sri Penta Srinu is examined as P.W.3, who also deposed in her evidence that her husband was brought to the house since he received snake bite in the fields and that all the village people came to her house to see her husband and P.Ws.1 and 2, also came to see, her husband. P.W.4 also deposed of the same. But 12 POCSO S.C.28/2014
P.Ws.2 and P.w.4, deposed that after seeing the said Sri Penta Srinu, they returned back to their houses.
23.P.W.1 further deposed that when she is about to leave the house of Sri Penta Srinu, the accused, who is alone present in his house and who is neighbor of the said Sri Penta Srinu, called her and she went to the house of accused, by that time TV is going on and she also commented the accused that the singer who is singing is also looks like the accused. P.W.1 further deposed that the accused suddenly caught hold of her hand and pulled her into the house into the room by bolting from inside and at first she went into the verandah of the house, for which there is a door and the accued caught hold of her hands in the verandah and pulled her into a room and when she tried to raise cries, the accused pressed her mouth with his hands and laid her on cot and committed rape on her by removing her green colour inner and blank colour leggin (M.O.2 and 3) and pink colour top (M.O.1). P.W.15 who is Head Constable also deposed in his evidence that on 28.12.2013, at 10 a.m., the mediators came to Police
Station and in their presence, PW1 produced her cloths which are
M.os.1 to 3, which were seized under the cover of Ex.P.2 mediator’s report.
24.In the present case there is a direct witness to the incident who is no other than the mother of the victim girl(PW1). P.W.1 deposed that on hearing her sounds (mulugulu) since her mouth was shut by pressing by the accused, her mother who came to her neighbouring house for milk, and on hearing the sounds (mulugulu) 13 POCSO S.C.28/2014 came to the house of accused and knocked the doors and saw the incident of raping her by accused through the gap in between the two doors which are closed in condition and which are bolted inside.
P.W.2, who is the eye witness to the incident, who is mother of victim girl, deposed that when PW1 did not return back from the house of Sri
Penta Srinu, she searched for PW1 to ask her to bring milk and as
P.W.1 is not available, she went to the house of Sri Penta Srinu, since they used to sell milk and when she went near the house of accused, she heard mulugulu from his house and when she saw through the gap between the doors of the house of accused, she saw that the accused committing rape and participating in sexual intercourse with the victim girl by pressing her mouth with his hands and saw the victim girl on the cot and committing sexual intercourse with the victim girl.
25.The learned counsel for the accused argued that there is no possibility to see the cot from the gap between the doors of the house even as per the rough sketch of the scene of offence, which is marked as Ex.P.17 or even as per the positive photos which are marked as
Ex.P.7, since the cot as seen from photos is situated to a corner of the house no possible to see through the doors gap as per rough sketch.
26.As could be seen from the said photographs there is a front door and back door also to the said room and on seeing the photos one can say even there is possibility of seeing through gap in between the doors by any person on the cot present in the room, cannot be ruled out, since the room itself is a very small room, as seen from photos.
14 POCSO S.C.28/2014
27.The learned counsel for accused argued that basing on the rough sketch, wherein the scene of offence place is shown to an extreme left side of the door where the cot is shown at a distance, whereas the photos is clear that there is possibility of seeing any person through the said gap between the doors into the house.
28.It is not even suggested to PW2 in the cross examination that there is no gap in between the doors, to see any one in the room through the gap between the doors. The learned counsel for accused argued that there is improvement in the case of prosecution of witnessing the incident, by P.W.2. P.W.1 denied the suggestion in her evidence that her mother (PW2) did not came to the house of accused and knocked the door and saw the incident through the gap between the doors and then the accused pushed her. She categorically deposed that due to fear she went to her grandfather’s house and her mother return back and told to her that she saw the entire incident and she did not fear and asked her what happened and she narrated the entire incident to her mother. P.W.1 denied the suggestion that she did not state anything to police that her mother has seen the entire incident through the gap between the doors but as observed by the court and as noted in the evidence portion itself, the 161 Cr.P.C., statement itself reveals that her mother witnessed the incident and did not specifically stated that she witnessed the entire incident through the space between the doors. Ex.P.1 report itself discloses that when the accused committing rape her mother came and knocked the doors of the room and then the accused pushed her to go out side 15 POCSO S.C.28/2014 and she left through back door, which she has also spoken before the
Court.
29.The only thing that she did not state to police that her mother witnessed the incident through the gap in between the doors.
But knocking the door by PW2 is borne out in the earlier statement as well as in the report itself. Therefore, it cannot be said that there is development to the case of prosecution. But the earlier version is not changed and therefore there is no development of evidence.
30.As per the case of prosecution, while P.W.2 knocked the doors, her bangles were broken and she also sustained injuries on the wrist on her hands. P.W.2 also deposed that her bangles were broken, at the time of knocking doors and also saw the incident by saying “what is going on (idemni panira)” and also made “gundelu badukuntu talupulu kottinanu” and in that process her bangles were broken and bangles pieces pierced her hands and she received bleeding injury to her hands and the accused pushed away her daughter through the back door and opened the bolts from inside, which is bolted from inside and then she questioned the accused why he committed rape on her daughter and then the accused told harshly “ emai poyindi ippudu “ and also stated “emi chesukuntavo chesuko”.
31. To support the evidence of P.W.2, there is also medical evidence P.W.14, the medical officer deposed in his evidence that he examined P.W.2, on 28.12.2013 at about 7.30 p.m., and found a linear abrasion of 1 x ½ cm. over left fore arm wrist and the above injury is simple in nature and the said injury is blackish red in colour. In the 16 POCSO S.C.28/2014 cross examination the medical officer (PW14) deposed that PW2 stated to him that she was attacked by a known person. But the said statement given to the medical officer cannot be ruled out of possibility of causing injury to P.W.2, at the time of knockingdoors, as her bangles were broken.
32.There is also medical evidence to say that the accused committed rape on PW1, since the medical officer who is examined as
P.W.13, deposed in her evidence that, she found no external injuries on the private parts of the victim girl and admitting one finger into vagina orifice healthy, no bleeding, no tear on vagina and the vaginal orifice is 2 x 2 cms and she collected pubic hair, vaginal swab and under wear and sent the same to RFSL and later gave final opinion that the victim girl might have had sexual intercourse and issued certificate to that effect and as per RFSL report item Nos. 3 and 8 contain human semen and spermatozoa. She deposed in the cross examination that basing on the RFSL only she came to conclusion that the victim girl might have had sexual intercourse and she has not noted whether hymen intact or not and the witness says when there is vaginal orifice is present, that means, hymen is not intact. Therefore, from the evidence of P.W.13, the medical officer, it is clear that the victim girl might have had sexual intercourse since hymen is also not intact. Therefore, from the evidence of P.W.13, medical officer, it is clear that the victim girl might have had sexual intercourse since hymen is also not intact and human spermatozoa were present on the underwear.
17 POCSO S.C.28/2014
33.The learned counsel for accused argued that P.W.2 who is a
Drama Artist, is in the habit of filing cases and extract money and suggested the same to P.W.2,in the cross examination. No women will foist a case of this nature by implicating her own daughter, in a heinous crime, which reflects the character of the victim girl and reputation of the family.
34.Therefore, the contention of the accused cannot be accepted and also the accused has not examined any defence witness, in support of his contention that PW2 filed any criminal case of this nature against anyone in the village or ended in compromise by taking money from them.
35.More over under section 114-A of Indian Evidence Act, is clear that in a prosecution for rape, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent, the court shall presume that she did not consent.
36.Here in the present case, the question of consent does not arise since the victim girl is a “Child” around 14 years and therefore, consent is immaterial. Even under Section 376 of IPC, consent is immaterial, if the girl is under eighteen years of age, as per Criminal
Law Amendment Act 13 of 2013 w.e.f. 03.02.2013. Although there are some exaggerations per se as pointed out by the learned counsel for accused as discussed in earlier paras, exaggerations do not render the 18 POCSO S.C.28/2014 evidence brittle. When the prosecution endeavors to introduce at the trial a new version or even which is materially different from the original as noted in the FIR, the court has to take much care in scrutinizing the evidence. When satisfactorily and cogent explanations are given for the deviations and improvements made, a like in the present case the evidence can be accepted to be true. Therefore, although there are some minor developments in the case of prosecution as pointed out in earlier paras, it does not go to the root of the case of prosecution to disbelieve the case of prosecution.
37.The learned counsel for accused argued that the entire case of prosecution has to be thrown out since there is earlier report alleged to have been given to police, by PW1, which is not filed before the
Court and Ex.P.1 report is pressed into service at a later time only to fabricate the case against the accused.
38.As could be seen from the registered FIR, it is registered at 8.30 a.m., on 28.12.2013. P.W.1 who is victim girl deposed in her evidence that on 26.12.2013, the incident took place at 6.30 or 7 p.m., and she narrated the incident to her mother and on that date itself and her mother made a phone call to the elders and a dispute was raised
before elders on the same day and the accused and his father also
attended to the panchayat held in their house and out of which panchayatdars, P.Ws.5 to 8 were examined and in the middle of the panchayat the mother of the accused joined and alleged that P.W.1 committed theft of four tulas of gold from their house and the father of the accused chastised the mother of accused and PW2 questioned the 19 POCSO S.C.28/2014 accused for the incident. The accused stated to do what-so-ever and panchayat was held on 26th and 27th and thereupon on 28.12.2013 she herself and her mother went to police station and she gave Ex.P.1 report to police.
39.P.W.1 in the cross examination deposed that she herself drafted Ex.P.1 report, at the police station and she stated in her evidence that she did not mention in Ex.P.1 report that she narrated the entire incident to the panchayatars or the father of accused or mother of accused came to the panchyat and the mother of accused alleged that she made theft of four tulas of gold or the father of accused chastised his wife or the panchayat wat held for two days by naming the elders.
40.P.W.2 deposed in her evidence that she made a phone call to Sri B.Krishna Murthy Sarma(PW7) after the incident who is her Guru in Dramas and he informed that to raise a dispute before elders and then she informed the incident to the elders P.W.5 , P.W.8 and her father P.W.7 and others who attended the panchayat, which is held in her house and when the panchayatdars questioned the accused, the accused and his father admitted the incident but the mother of accused alleged that P.W.1, committed theft of four tulas of gold from their house, for which, the father of accused chastised his wife and then the accused and his father told that they ready to perform the marriage of victim girl with the accused, but P.W.2 did not agree for the same and later after thinking about the future of the victim girl.
P.W.2 asked the accused family to give security for the life of victim 20 POCSO S.C.28/2014 girl by giving three acres of land, to perform the marriage of PW1, with the accused, but the accused and his parents did not agree for the same and the panchayat was held for two days and thereupon they went to the police station and P.W.1 gave report to the police. But in the cross examination, P.W.2 categorically deposed that immediately after the incident she did not try to give report to police and she raised a dispute before the elders and she went to the police station at 8 p.m., on 28.12.2013. She also deposed in the cross examination that on the same day of the incident also she went to police station at about 7 or 7.30 p.m., and stated about the incident to police and in the meanwhile the elders came to police station and took her back, saying that it will be settled in the panchayat and later panchayat was held for two days at her house on 27th and 28th and the report was given on 28.12.2013 at about 7 or 8 p.m. and she examined on 28.12.2013 itself, by the police.
41. So, as per the evidence of P.W.2, immediately after the incident she went to the police station and meanwhile the elders came to the police station and took her back saying that the matter will be settled in the panchayat she did not deposed that P.W.1 presented any report in writing or by herself to say that the earlier report was suppressed.
42. P.W.5 who is Ex Surpanch of the village deposed in his evidence that on 26.12.2013 the father of the accused Sri Satyam
Naidu came to him, saying that his son was alleged to have committed rape on P.W.1, and to raise a panchayat and later P.W.2, 21 POCSO S.C.28/2014 came to him and told about the incident and himself and other panchayatdars held a panchayat on 26.12.2013 at the house of P.W.2, itself and discussed and at first the accused and his father came to the panchayat and they asked about the incident and P.Ws.1 and 2, narrated the incident and then they questioned the accused who denied the incident. As the panchayatars could not settle the matter,
P.Ws.1 and 2, went to the police station, at a later time. He deposed in the cross examination categorically deposed that they sat in the panchayat upto 9 p.m., on that date and they made sitting at about 6 a.m., to 9 a.m., for three hours, on the next day.
43.P.W.6 is a Drama Guru of P.W.2, who is a Drama Artist and
P.W.7, who is father of P.W.2, who is Guru of P.W.6, as per his evidence, in the said Drama field. P.W.6 also deposed in his evidence that P.W.2 made a phone call to him to visit the village and participate in the panchayat and he went to the village and P.W.5, P.W.8 and others also participated in the panchayat and also deposed that on the next day also the panchayat was held at about 8 a.m., and all the panchayatdars are attended the first panchayat also attended the panchayat on the 2nd day and the next day panchayat was held from 8 a.m., to 10.30 a.m.
44.P.W.7 who is no other than the father of P.W.2 also examined, who deposed in his evidence that on 26.12.2013 in the evening he returned from church and noticed P.W.1 running by weeping towards his house from the backyard of the house of accused and when he questioned PW1 what happened, meanwhile P.W.2 came 22 POCSO S.C.28/2014 there and when questioned P.W.2 relied that the accused committed rape on PW1 and he advised PW2 to raise a panchayat and the panchayat was held in the presence of the said elders and he also participated in the panchayat as village elder and again on the next day also panchayat was held, before the same elders. He deposed in the cross examination that herself and P.Ws.1 and 2, went to the police station on the same day of the incident and the report was given to police on the same day night and police examined him on 28tth and the witness says that on 28th also both parties and elders came to the police station and negotiations took place. The surpanch of the village is examined as P.W.8, who also deposed that a panchayat was held
before him and others, at the instance of P.W.2 on 26.12.2013 night
and also on the next day the 2nd panchayat was held and they went to the police station and at 10 a.m., they signed on the mediator’s report and he acted as one of the mediator for seizure of M.Os.1 to 3 clothes of P.W.1 and whose evidence is corroborated by the evidence of Head constable, who is examined as P.W.16.
45.P.W.8 also deposed that police took them to the house of accused and there another mediator’s report (Ex.P.3) was drafted, on which, himself and another mediator Sri Chappa Srinivasarao, were attested the same.
46.Therefore, from the evidence as a whole read it is clear that when the victim girl and P.W.2, went to the police station and brought them back to the village and held panchayat for two days and ultimately on 28th the matter was reported to police, and therefore, 23 POCSO S.C.28/2014 from this, it can be said that there is no suppression of earlier report since all the witnesses categorically deposed that the panchayat was raised for two days i.e., 26th and 27th and therefore, it cannot be said that there is delay in lodging the FIR and simply because the names of elders are not mentioned in the report given by P.W1, who is aged only 14 years minor girl and who is not conversant with the Law and simply not mentioning about the same of raising the dispute by the elders for two days, it cannot be said that the delay in lodging the
FIR is not properly explained by the prosecution, of not mentioning the panchayat held for two days in Ex.P.1 report itself. There is no omission in the 161 Cr.P.C., statement, which is a detailed statement of about conducting panchayat for two days and the statement was given on the same day on 28.12.2013 and in the statement she also stated some names of the panchayatdars also and therefore, it cannot be said that the delay is not properly explained. Moreover, the report need not contain all the details and the details are recorded by Police in the statement of the victim girl and witnesses and therefore, the said contention of the accused, cannot be accepted.
47.In the present case, the investigating officer also collected
Ex.P.16 10th class certificate of the accused, which discloses that the accused is aged 19 years four months by the date of offence since his
Date of Birth is 1.7.1994. The investigating officer obtained the said certificate only to ascertain that the accused is not a Juvenile.
Moreover, the accused examined by the medical officer, who also conducted potency test who certified that the accused is not an impotent.
24 POCSO S.C.28/2014
48.There are some latches in the invest0igating agency. Under the provisions of Protection of Children from Sexual Offences Act, the victim girl is to be examined by a lady police officer and certain procedure is to be adopted while recording the evidence of victim girl as per Provisions of Protection of Children from Sexual Offences Act.
The investigating officer also not gave any requisition to record the 164 Cr.P.C., statement of the victim girl. But for the investigation latches, the prosecution case cannot be thrown out.
49. On careful pondering of the evidence on record, when the evidence of the witnesses is read as a whole appears to have ring of truth. Therefore, when the evidence of the witnesses is scrutinized, carefully and there are no minor discrepancies on trivial matters not touching the core of the case. Though there are Investigation laches in this case and as pointed out in the earlier paras, and though the learned counsel for the accused pointed out the exaggerations in the evidence of P.Ws.1 and 2, but the exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version. When the entire evidence is put in a crucible for being tested in the touch-stone of the credibility, it can be said that it is trustworthy. Therefore, mere marginal variations in the statements of witnesses cannot be dubbed as improvements as the same may be elaborations of the statements made by the witnesses earlier. Therefore, there is no dubiousness to hold that the accused confined the victim girl and committed rape on the victim girl, who is a “Child”.
25 POCSO S.C.28/2014
Under section 30 of Protection of Children from sexual offences Act: Presumption of culpable mental State:
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in the prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the special Court believes it to existence is established by a preponderance of probability.
50. Therefore, as per section 30 of the Protection of Children from Sexual Offences Act, 2012, it is for the accused to prove that he had no such mental state, but the accused has not proved that he has no such mental state.
51. Thus, the Prosecution proved the guilt of accused for the offence under Sections 342, and 376 IPC and under Section 4 of the
Protection of Children from Sexual Offences Act,and accordingly, the accused is Convicted under section 235(2) of
Cr.P.C., for the said offences.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in Open Court, this the 3rd day of February, 2016.
I Addl. Sessions Judge, Vizianagaram
When questioned with regard to the quantum of sentence, to be imposed against the accused, he stated that.
26 POCSO S.C.28/2014
Takingintoconsiderationandmitigating circumstances and aggregating factors and considering the nature of offence and the age of the accused that he committed rape on teenage girl who is aged 14 years, which is a heinous crime. It is pertinent to state that the Protection of Children from Sexual Offences
Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence and the burden of proof is on the accused in any case of child abuse. However, in this case there is incriminating evidence against the accused that the accused committed the alleged offences punishable under Special Act and also under I.P.C. Hence, I am not inclined to take lenient view against the accused in imposing the sentence.
52.Having committed the offence of rape on victim girl, who is under 16 years of age, as per section 376(2)(i) of IPC the minimum punishment of rigorous imprisonment which shall not be less than 10 years. Therefore, the accused is convicted under section 235(2) of
Cr.P.C., and he is sentenced to undergo minimum punishment of TEN (10) Years RIGOROUS IMPRISONMENT and also to pay a fine of
Rs.5,000/- and in default of payment of fine, he shall suffer Simple imprisonment for three (3) months, for the offence under
Section 376(2)(i) of IPC 27 POCSO S.C.28/2014
53. In the result, accused isfound guilty for the offence under Section 342 IPC., he is convicted under section 235 (2) of
Cr.P.C., and he is sentenced to undergo RIGOROUS IMPRISONMENT for a period of ONE (1) YEAR, for the offence under Section 342 of
IPC.
54.In the result, accused isfound guilty for the offence under Section 4 The Protection of Children from Sexual
Offences Act, the minimum punishment is not less than 7 years, but which may extend to imprisonment for life. Having sentenced 10 years imprisonment for the offence under section 376 (2) (i) IPC, the same punishment is also awarded to the accused under section 4 of the
Protection of Children from Sexual Offences Act. Hence, the accused is convicted under Section 235 (2) of Cr.P.C., and he is sentenced to undergo RIGOROUS IMPRISONMENT for a period of
TEN (10) years, and to pay a fine of Rs.5,000/- and in default of payment of fine, he shall suffer Simple imprisonment for three (3) months for the offence under Section 4 The Protection of Children from Sexual Offences Act.
55.It is further ordered that all the sentences of imprisonment imposed for all of the offences is ordered to run concurrently (simultaneously).
56.M.Os. 1 to 5 and unmarked property, if any, is ordered to be destroyed after appeal time is over, since it has no value.
It is further ordered that the remand period undergone by accused (from 01.01.2014 to 22.01.2014) is ordered to be set off under
Section 428 Cr.P.C.
28 POCSO S.C.28/2014
Accused is informed that he has got right to prefer appeal
before the Honourable High Court.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in Open Court, this the 3rd day of February, 2016. .
Sd/- K.V.Ramanaji Rao
I Addl. Sessions Judge, Vizianagaram
Appendix of evidence Witnesses Examined.
For Prosecution :For Defence: NONE
P.W.1 : x x x x (victim girl)
P.W.2 : Chukka Uma
P.W.3 : Penta Manga
P.W.4 : Chappa Manga
P.W.5 : Bellana Krishna Murthy
P.W.6 : Ballamuri Krishna Murthy Sarma
P.W.7 : Choppa Suryanarayana
P.W.8 : Gadi Satyam Naidu
P.W.9 : Smt. Siripurapu Deevenamma, Head Mistress
P.W.10: P. Raju, Photographer
P.W.11: Sri Pola Appa Rao, Ex.M.P.T.C. Member
P.W.12: Marada Eswara Rao
P.W.13: Dr.V.R. Meenakshi, Civil Assistant Surgeon
P.W.14: Dr. B. Appala Naidu, Civil Assistant Surgeon
P,W.15: Sri P.Srinu, Head Constable
P.W.16: Dr. S.V.Rama Murthy, Civil Assistant Surgeon
P.W.17: Sri G.Demullu, Inspector of Police
P.W.18: Sri P.Vara Prasad, Sub Inspector of Police
Documents Marked
For Prosecution:
29 POCSO S.C.28/2014
Ex.P.1: Report given by P.W.1 to the Police dated 28.12.2013
Ex.P.2: Mediators report dt.28.12.2013 at 10.00 a.m.
Ex.P.3: Mediators report dt.28.12.2013 at 12 noon
Ex.P.4: Study certificate of P.W.1
Ex.P.5: Requisition given by Inspector of Police given to P.W.9.
Ex.P.6: Bunch of eight positive photos
Ex.P.7: Negative C.D.
Ex.P.8: Signature of P.W.11 on the confessional statement cum mediators report Dt.31.12.2013.
Ex.P.9: Signature of P.W.12 on the confessional statement cum mediators report Dt.31.12.2013.
Ex.P10: Preliminary report given by P.W.13
Ex.P11: Final certificate issued by P.W.13.
Ex.P12: R.F.S.L. report
Ex.P13: Wound certificate of P.W.2 issued by P.W.14
Ex.P14: Potentiality certificate of accused issued by P.W.16
Ex.P15: Original F.I.R. No.60/2013 u/Sec.376, 342 of IPC
Ex.P16: S.S.C. Certificate of the accused
Ex.P17: Rough sketch prepared by P.W.17
Ex.P18: Memo filed by P.W.17 for alteration of Section of Law
Ex.P19: Relevant portion in confessional statement cum mediators report
For defence : Nil
Material objects Marked.
M.O.1 : Pink coloured top
M.O.2 : Black coloured leggin
M.O.3 : Green colored inner (drawer)
M.O.4 : Shirt
M.O.5 : Underwear (drawer) 30 POCSO S.C.28/2014
Sd/- K.V.Ramanaji Rao
I Addl. Sessions Judge, Vizianagaram .
Copy to the Hon’ble High Court of Andhra Pradesh, Hyderabad by way of C.D.
Copy to the accused
Copy to the Superintendent of Police, Vizianagaram.