1 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
IN THE COURT OF SPECIAL SESSIONS JUDGE FOR EXPEDITIOUS
DISPOSAL OF CASES OF RAPE AND PROTECTION OF CHILD
AGAINST SEXUAL OFFENCES (POCSO ACT),
WARANGAL.
Thursday, the 21st day of July, 2022.
PRESENT: SMT. KOKA RADHA DEVI,
Principal Sessions Judge,
Warangal,
FAC.Special Sessions Judge for expeditious disposal
of cases of Rape & Protection of Child against
Sexual Offences (POCSO) Act, Warangal.
SPL.SESSIONS CASE NO.61 OF 2019.
(Crime No.40 of 2018 of Police Station Kazipet.)
1.Name and description of the :The State of Telangana rep.by complainant.the Sub Inspector of Police, Police Station Kazipet.
2.Name and description of the :Manthri Yellesh, S/o. Venkatesh, accusedaged 22 years, Occ: Auto driver, R/o. Vegetable Market, Kazipet.
3.Offence charged:Under Section 354 A(1)(i) r/w 354 A(2) of Indian Penal Code and Section 7 read with 8 of the POCSO Act.
4.Plea of the accused:Pleaded not guilty.
5.Finding of the Court:Found not guilty for the offence u/s.7 read with 8 of POCSO Act.
Found guilty for the offence u/s.354 A(1)(i) r/w 354 A(2) of Indian Penal Code and Section 11 read with Sec.12 of the POCSO Act.
2 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
6.Conviction, sentence or :The accused is found not guilty for the offence u/s.7 read with 8 of acquittal POCSO Act and accordingly he is acquitted u/s.235(1) of Cr.P.C. for the said offence.
The accused is found guilty for the offence under Section 354 A(1)(i) read with 354 A(2) of the Indian Penal Code and Section 11 read with Sec.12 of the Protection of Children from Sexual Offences Act. As per Section 42 of the POCSO Act, the accused is convicted u/s.235(2) of Cr.P.C., for the offence under section 11 read with Sec.12 of the POCSO Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of three months.
7.Counsel for the prosecution:Sri Molugoori Ranjeeth, Special Public Prosecutor.
8.Counsel for accused:Sri R.Bixapathi, Advocate, appointed as Legal Aid Counsel.
This case is coming on this 15.07.2022 before me for final hearing in the presence of Special Public Prosecutor for the State/complainant and of Sri.R.Bixapathi, Advocate appointed as Legal Aid Counsel for the accused and upon considering the material evidence available on record and having stood over for consideration till this day, the Court delivered the following:
:: J U D G M E N T ::
1.The accused is charged and tried for the offence under Section 354 A(1)(i) read with 354 A (2) and Section 7 read with 8 of Protection of 3 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
Children from Sexual Offences Act for procuring and forcing the minor girl with intent to outrage her modesty.
2.The brief facts of the prosecution case are that on 03.03.2018 morning at about 09.00 hours, the complainant (PW.2) sent his daughter (victim-PW.1) to Government School, Kazipet in an auto bearing No.AP- 36TA-7685 driven by the accused and while proceeding to the school, on the way at about 09.30 hours, the accused stopped the auto and took the victim girl (PW.1) to a restricted place i.e., beside Kadipikonda bridge, Kazipet and forced her to remove her pant and tried to outrage her modesty. On that the victim girl (PW.1) started shirking and on hearing the shrieks of victim (PW.1), PW.4 and LW.6-Md.Rafi rushed to the scene, on seeing them, the accused fled away from the scene.
Thereafter, PW.4 and LW.6-Md. Rafi informed the same to PW.2. On that,
PW.2 rushed to the scene and on his enquiry with victim (PW.1), she informed about the incident by weeping to PW.2. Then, PW.2 lodged a
Telugu written complaint at Police Station Kazipet at about 10.30 hours.
On receipt of the said complaint, PW.8-SI of Police, Kazipet registered a case in crime No.40 of 2018 u/s.354, 363 read with 511 of IPC and
Section 8 of POCSO Act and issued FIR (Ex.P4).
During the course of investigation, PW.8 examined PW.2 and recorded his statement. Later on the directions of PW.8, LW.3- 4 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
M.Shailaja, WPC No.1708 has examined and recorded the 161 Cr.P.C.
statement of victim girl (PW.1) in Police Station Kazipet. PW.8 further examined PWs.3 and 4 and recorded their statements. Lateron, he visited the scene of offence at Kadipikonda bridge, Kazipet followed by
PW.1, there the scene of offence in crime details form (Ex.P2) was prepared in the presence of PW.5 and LW.8-R.Uma Mahesh. On 05.03.2018 PW.8 along with his force rushed to the house of the accused at Vegetable Market, Bapujinagar, Kazipet around 09.00 hours by securing the presence of PW.6 and LW.9-T.Sarangapani and confession statement of the accused was recorded under the cover of panchanama (Ex.P3). The accused confessed the guilt that he has confessed the offence. Auto rickshaw bearing No.AP-36TA-7685 at the instance of the accused was seized in the presence of above panchas. Then the accused along with seized auto were taken to the Police station and necessary entries were made and accused was arrested by issuing arrest card intimating the grounds of arrest and intimation to his family members. The accused was produced before the Court for judicial remand. Subsequently, on transfer of PW.8, on oral instruction of
Inspector of Police, PW.7 took up further investigation and he filed a requisition to record the statement of victim girl (PW.1) u/s.164 of
Cr.P.C., and the same was recorded by LW.11-Smt.K.Vani, Spl.JFCM for
PCR Cases, Warangal. By the evidence collected in the investigation, it 5 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
was established that the accused is liable for punishment u/s.354, 363 read with 511 of IPC and Section 8 of Protection of Children from Sexual
Offences Act, 2012.
3.Upon which, this Court has taken cognizance of the offence under
Sections 354, 363 read with 511 of Indian Penal Code and Section 8 of
Protection of Children from Sexual Offences Act against the accused. On appearance of the accused, the copies of the documents were furnished to him u/s.207 of Cr.P.C.
4.Upon perusal of the material on record, the charges for the offence punishable under Section 354 A(1)(i) read with 354 A(2) of Indian Penal
Code and Section 7 read with 8 of the Protection of Children from Sexual
Offences Act were framed against the accused, read over and explained to him in Telugu, to which he pleaded not guilty and claimed to be tried.
5.During the course of trial, the prosecution has examined PWs.1 to 10 and got marked Exts.P1 to P4 as indicated in the appendix of evidence.
6.After closure of the prosecution evidence, the accused was examined u/s.313 Cr.P.C., confronting him with the incriminating evidence appearing against him in the evidence of prosecution witnesses, to which he denied and reported no defence evidence.
6 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
7.Heard both sides. Apart from oral arguments, the learned Legal
Aid counsel for the accused has also submitted written arguments, which is part of the record and the contentions will be discussed at the appropriate stage.
8.The learned Spl. Public Prosecutor for the prosecution has submitted that the oral evidence of PWs.1 to 10 and the documentary evidence under Exts.P1 to P4 placed by the prosecution established the guilt of the accused in proving the offences charged against the accused. The learned Spl.Public Prosecutor further contended that the victim girl is aged below 10 years and was sexually assaulted by the accused intentionally, who being the auto driver, taken her to the School and the prosecution proved the case against the accused, as such he is liable for punishment. The learned Spl.Public Prosecutor submitted that the offence committed against the victim, aged 8 years in this case, is a serious offence and object of the Act will be defeated unless the wrong doer will be punished in accordance with law and prayed for conviction of the accused.
9.The learned counsel for the accused has submitted that the case against the accused is a false one and there were discrepancies and omissions recorded in the evidence of witnesses as noted in the written arguments viz., 164 Cr.P.C. statement of PW.1, wherein she stated the 7 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
name of one Mallesham was the driver of said auto, the information by
PW.1 to her father (PW.2) not stated by PW.2, the acquaintance of the accused and PW.2, the non-disclosure of the details of the pant colour and the admissions of PWs.1 and 2 regarding the colour of the uniform.
In the written arguments, it was also pointed out that Ex.P2 was brought to the shop of PW.5 and according to PW.6, he saw the person M.Yellesh along with the auto in the custody of the police and recording of the confession and not marking the auto is fatal to the prosecution case.
The learned counsel further submitted in the written arguments as well as oral arguments that the witness has written the auto number on his hand while recording his evidence, as such the entire confession and seizure panchanama is false and according to PW.7, the name of panchas were not were not reflected in the draft charge sheet furnished to the accused. The learned counsel further drawn the attention of this
Court about pointing the evidence of PW.7 that no document was collected by him to show that the victim was studying in Government
School and according to PW.8, the seized auto was not produced into the
Court and he has not examined any witness at the School of the victim and no Birth certificate of the victim was collected. He further contended that PW.9 is not rank in the Officer and not received any written directions from her superior officer directing her to record the evidence of the victim. The learned counsel further submitted that u/s.7 8 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
of POCSO Act, the accused must touch or makes to touch the victim's body parts but in this case, the entire prosecution story or police investigation does not reveal the same, as such the prosecution has failed to prove the guilt of the accused and as such he is entitled for the acquittal.
10.Upon hearing both sides and perusing the record, the points that arise for consideration are:
i.Whether the victim is a child as defined under Section 2 (d) of the Protection of
Children from Sexual offences Act?
ii.Whether on 03.03.2018 at about 09.00 hours the accused has taken the child (PW.1) in his auto bearing No.AP-36TA 7685 to take her to the School?
iii.Whether while proceeding to the School, on the way at about 09.30 hours, the accused took the victim girl (PW.1) to a restricted place beside Kadipikonda bridge at Kazipet asking her to remove the pant, thereby committed sexual assault on her?
iv.Whether the prosecution has proved the guilt of the accused for the offences charged under Sections 354 A(1)((i) read with 354 A (2) of Indian Penal Code and Section 7 read with 8 of the Protection of Children from Sexual Offences Act beyond all reasonable doubt?”
POINT No.1:
9 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
11.The case of the prosecution is that PW.1 is aged about 8 years, studying in Government School, Kazipet and on the alleged incident day,
PW.2 sent the victim girl (PW.1) in the auto of the accused at about 09.00 hours. On 22.01.2020 at the time of recording the deposition of
PW.1, she was aged 9 years. PW.1 was not subjected to cross examination denying the said fact. PW.1 studied Nursery to 2nd class in
Government School at Diesel colony, Kazipet and she used to go to
School by the auto of the accused. Apart from that the evidence of PW.2, in the cross examination also stated that the victim was studying in
Denken Baban School at Kazipet at the time of alleged incident. There was no cross examinations to PW.2 denying the age of the victim that she was aged 8 years or 9 years. Similarly, the evidence of PW.3- mother of victim who stated that PW.1 was studying in Dencan Baban
School, Jubilee Market, Kazipet in the year 2018 and the same was not challenged regarding the age of the victim. The complaint Ex.P1 also disclosed the age of the victim that she was aged 8 years at the time of alleged offence, is not disproved. PWs.7 and 8 have not collected any documentary proof to show that the victim was aged about 8 years as on the date of alleged incident. The parents have affirmed that the girl was aged 8 years at the time of incident and other available record on hand as well as first information report basing on Ex.P1 also proving the fact that PW.1 is below 10 years. On the other hand, the accused also 10 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
did not raise any dispute/objection with regard to the age that the victim was not aged 8 years at the time of alleged incident. Therefore, this
Court believed the consistent oral testimony of PWs.1 to 3 and Ex.P1 regarding the age of the victim as 8 years and she was studying in a
Government School named by the parents i.e., Dencan Baba School,
Jubilee market, Kazipet at the time of incident.
Accordingly, this point is answered in favour of the prosecution.
POINT NO.2:
12.PW.1-victim in his evidence deposed that PW.2 and PW.3 are her parents and she studied Nursery to 2nd class in Government School of
Deisel Colony, Kazipet and often she used to go to School by the auto of the accused. On 3.3.2018 she started to school by the auto belongs to the accused and he took her to bushes under the bridge, gave her
Rs.10/- and asked her to remove her pant and directed her to show her private parts. She further deposed that due to fear, she raised screams, then some of the passersby came to her and she informed the same to them, on their enquiry, the accused ran away. She further stated that on enquiry by the above said persons, she informed the phone number of her father, they called to her father to the mobile No.xxxx7799 and thereafter her father came to the said place, she narrated the incident to her father. Later, her father took her to Police station, examined her 11 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
and recorded her statement. She also gave statement before the
Magistrate. She identified the accused as the driver of auto as the
person who committed the offence against her.
13.PW.2-father of victim deposed before the Court that about three years ago in the month of March, on one day, his wife got boarded the victim in the auto of the accused with an intention to sent her to the
School. Subsequently, he came to know that the accused without dropping the victim at school, took the victim to the Kadipikonda bridge and instructed the victim to remover her clothes (pant), on which victim started crying and on hearing the same, passersby heard the same and rescued the victim. PW.2 further stated that police telephoned to him and intimated the same to him. At that time, he also came to know that persons, who were gathered, caught hold the accused and handed over him along with victim to the police. PW.2 further stated that he also enquired with the victim and she narrated the same to him and then he gave complaint (Ex.P1) in the police station. Police examined and recorded his statement.
14.PW.3-mother of the victim deposed that in the year 2018, PW.1 was studying 2nd standard in Dencan Baba School, Jubilee Market,
Kazipet. On 3.3.2018 she got boarded PW.1 by the auto of the accused with an intention to send PW.1 to School. Subsequently, she came to 12 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
know from some of the persons that the accused did snot took the victim to the school and he took her to the bridge nearby Kadipikonda, there the accused asked the victim to remove her pant, on which due to fear, victim raised cries, then some passersby came to the said place and on their enquiry, PW.1 gave mobile number of PW.2 and the said persons narrated the said incident. She further deposed that immediately PW.2 and herself went to Kadipikonda bridge and thereafter they enquired with PW.1 and she also narrated the same, then they approached police and PW.2 lodged the complaint. The police examined and recorded her statement. From the above evidence, which is consistent, revealed that on the incident day around 9 O'clock in the morning hours, the victim girl was boarded into the auto of the accused to take her to the school at Kazipet.
15.The evidence of PW.4 is to the effect that on 3.3.2018 at about 9.30 A.M., while he was waiting near the bridge for labour as he was in construction business and at that time nearly 10 persons were present at the bridge, they all heard the cries of the victim, on that they went towards that place, PW.1 is the victim and the accused is the auto driver, and on their enquiry, PW.1 informed that the accused committed the offence. He also identified the accused and the victim at the scene of offence. But nothing could be elicited from the evidence of PW.4 to disbelieve his version. No enmity or otherwise is attributed to him to 13 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
speak false hood. He is not an interested witness. His evidence is relevant and reliable in proving the fact that the victim travelled in the auto of the accused to the scene of offence and identified the accused at the scene. PW.10 also saw the accused running away from the scene of offence So, the evidence of PWs.1 to 3 coupled with the evidence of
PW.4 and PW.10 is corroborating and reliable to believe that the accused has taken the victim girl in his auto to the place of offence from the house of PW.2 and the same is relied upon.
Therefore, this point is answered in favour of the prosecution.
POINT NO.3:
16.As per the prosecution, the alleged incident of assault on PW.1 happened on 3.3.2018 and the same was reported at Police station at about 10.30 hours as in Ex.P1 and FIR was registered by PW.8 and investigation was proceeded with. The prosecution has examined eight witnesses to prove the said allegations of sexual assault on PW.1 by the accused. As per the findings given on points No.1 and 2, the prosecution was able to establish that the complaint was lodged by
PW.2-father of the victim on the same day itself. The prosecution also proved that the victim-PW.1 is aged 8 years and she was travelled in the auto of the accused to go to school. As per the prosecution, the scene 14 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
of offence was at restricted place beside Kadipikonda bridge, Kazipet is evident from the evidence of PWs.1 to 3, PW.4 and PW.10.
17.The victim girl is aged 8 years. Her statement as PW.1 before the
Court is to the effect that she started to school in the auto of the accused and he took her to bushes under the bridge (scene of offence).
As per PW.2's version, the police informed him and he visited directly to the police station. But whereas according to PW.3, she along with PW.2 visited Kadipikonda bridge (scene of offence), enquired PW.1 and thereafter they approached the police and lodged the complaint. So from the evidence of PW.3, it is made clear that she visited the scene of offence on receipt of the information. It is also the evidence of PW.4 that while he was waiting near the bridge, he and others heard the cries of a girl, went there and found the PW.1 and on enquiry, she revealed the that the auto driver took her to that place and he (PW.4) also identified the PW.1 and the accused. PW.10 also stated that he heard the cries of a girl near the flyover bridge, Kadipikonda and saw the accused running from that place (scene of offence) and on enquiry, PW.1 also told that the accused took her to the scene of offence. The evidence of PW.5 who prepared Ex.P2 crime details form admitted his signature on Ex.P2-Crime details form. The above evidence indicating the scene of offence is nearby the bridge of Kadipikonda, Kazipet and 15 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
the prosecution has proved the scene of offence beyond all reasonable doubt.
18.The person i.e., the accused namely Yellesh is identified by PW.4,
PW.1, PW.10 and PW.3. His name was Yellesh. The defence taken was that one “Mallesh” is the wrong doer of the crime as per the 164 Cr.P.C.
statement of the victim girl but not the present accused by name
Yellesh. The other plea taken by the accused Yellesh is that he was supplied with draft charge sheet only without showing the names of the panch witnesses. These two objections were not taken by the accused at the earliest before commission of trial. The accused was defended by the counsel and witnesses were crossexamined. There was no suggestion put to the witnesses that culprit was “Mallesh” but not the present “accused Manthri Yellesh”. As per the evidence of PW.6 also he identified the accused who is Yellesh at the time of seizure of auto.
Therefore, the above said two objections cannot be viewed seriously in the present case.
19.As per the evidence of PW.8, he registered Ex.P4 FIR, recorded the statements of the witnesses, apprehended the accused on 05.03.2018 at 9.00 A.M., at Vegetable Market, Bapujinagar, Kazipet and on interrogation, the accused confessed the offence and he seized the auto in the presence of two mediators PW.6 and LW.9-Telu Sarangapani in 16 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
Ex.P3. PW.6 also supported the prosecution version about the seizure of the said auto and he also identified the accused (M.Yellesh) from whom the auto was seized. The evidence of PW.6 was subjected to cross examination and the correctness if any and non-signing of the front page of Ex.P3 did not shake his evidence. The police also produced the said vehicle in CPR No.16/2019. Mere non-marking the said vehicle is not fatal to the prosecution case since the allegations against the accused are of sexual assault committed against PW.1. Therefore, the contention of the counsel for the accused not helps good for not marking of the crime vehicle.
20.As per the evidence of PW.10, he heard the cries of the victim on the day while he was proceeding to his office and reached near flyover bridge at Kadipikonda, saw the auto driver running away and came to know of the incident and informed to the parents of the girl and parents of the girl lodged a complaint. He was a Senior Technician working in
Railways. He also know PW.4 who was present at the scene of offence and other persons, and found the victim was in school uniform. The above evidence was not shaken by the questions putforth by the defence counsel to disbelieve his presence and stated facts touching the crime committed by the accused. As per the statement of PW.1-victim also, on information when she furnished her father's phone number, her father came and his father took her to the Police station. She also 17 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
identified the accused. The evidence of PW.1 victim and PW.10 is corroborating and indicating the fact that the information was given to the parents of the victim from the scene of offence. PW.2 whether directly went to the police or not cannot be viewed seriously as there is possible of the PW.2 to go to Police station, where the PW.1, PW.3 and other left the scene of offence after he received the information.
21.Similarly, the omission recorded in the statement of PW.1 regarding Rs.10/- alleged to be offered by the accused cannot be viewed seriously as it is not specifically alleged and found in Ex.P1 complaint and Ex.P4 FIR when taken into consideration the 164 Cr.P.C. statement of the victim who is a girl of eight years was asked to show her private parts by removing the dress, Mallesh gave Rs.10/-, cannot be discarded for the reason that child will be attracted for doing any work by an offer like chocolate, biscuits or gift. Therefore, the omission to say about
Rs.10/- either in the complaint, 161 Cr.P.C. statement or in the evidence of PW.1 before the Court is not a serious one taking into consideration of tender age of the victim girl and incapability to produce the facts.
Likewise the name of accused recorded by the Magistrate as “Mallesh” may be an error in noting down the “Yellesh” as pronunciation of these two names spoken ending with “llesh”. Apart from that the accused
Yellesh has faced the trial till this day has not taken any steps that his name was not Mallesh nor he was not the wrong doer against whom the 18 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
crime was registered. The accused has followed all the proceedings without raising any objection and therefore, believed the name of
Mallesh recorded in 164 Cr.P.C. statement of the victim is referring to the name of the accused “Yellesh” only.
22.It was suggested to PW.6 that he has written the number of the auto on his hand at the time of recording his evidence. As per the evidence of PW.8, he seized the auto No.AP-36TA-7685 and produced the same before the Court vide CPR No.16/2019. The noting of the auto number in the hands of the witness at the time of recording his evidence is not a serious lacuna even the objection is sustained.
23.As per the evidence of PW.10, the victim girl (PW.1) was in uniform at the time of alleged offence. PW.1 started on the relevant day to go to
School. It can be presumed that she wore a uniform. PW.,3 also got boarded the PW.1 in the auto of the accused with intention to send her to school. As per 164 Cr.P.C. statement of PW.1 also her mother sent her to school in the auto. Therefore, the prosecution has proved that the victim boarded in the auto of the accused to go to school on that day wearing uniform. Hence, the contention of the learned defence counsel that PW.2 failed to disclose the details of the pant, like colour and other details is not sustainable.
19 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
24.In this case, the statement of victim, aged 8 years, was recorded by the PW.9-Woman Police Constable. She is not the rank of SI of Police.
So, the defence has taken objection that the recording of the statement of the victim by PW.9 is not in accordance with the procedure is sustainable. But the statement of PW.1 u/s.164 Cr.P.C., recorded by the
Spl. Judicial First Class Magistrate for PCR Cases, Warangal is on record, which statement supporting the prosecution case.
25.As per the prosecution, the sexual assault committed by the accused against the victim is attracting the penal provisions under
Protection of Children from Sexual Offences Act (hereinafter called as
POCSO act) and u/s.354A (1)(i) r/w 354 A(2) of Indian Penal Code. The prosecution has able to establish that the victim is a child as defined under Section 2(d) of Protection of Children from Sexual Offences Act and on the incident day on 03.03.2018 she was taken by the accused in his auto bearing No.AP-36TA-7685 to take her to the school. Further, the prosecution also could succeeded in establishing its case that at the relevant time, the accused took the victim girl to a restricted place near
Kadipikonda bridge, Kazipet as shown in the crime details from (Ex.P2).
It is the case of the prosecution that at the scene of offence at the relevant time, the accused has committed the sexual assault on victim.
The sexual assault i.e., alleged offence on victim is like this:
20 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
“The accused asked the victim to remove her dress and show her private parts.”
26.This Court has already observed in the preceding paragraphs that the victim was wore the uniform at that time, which was a pant or dress, but the act committed by the accused asking her to show her private parts.
27.The sexual assault as per Section 7 of the POCSO Act is reads as under.
“Section 7 Sexual Assault: Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
28.Section 8 Punishment for Sexual Assault: “Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extent to five years, and shall also be liable to fine”.
21 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
29.The definition of sexual assault above reads itself indicating the “sexual intent” is the main ingredient of sexual assault on a victim.
The most important ingredient for constituting the offence of sexual assault u/s.7 of the POCSO Act is the “sexual assault” and not the skin to skin contact of the child.
30.The learned legal aid counsel appearing for the accused has submitted that the case, if any, is proved against the accused, is attracting Section 11 read with 12 of the POCSO Act.
31.Section 11 and 12 of the POCSO Act are reads as under:
“Section 11 Sexual Harassment: A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or 22 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
(vi) entices a child for pornographic purposes or gives gratification therefor.
Explanation: Any question which involves “sexual intent” shall be a question of fact.
Section 12 Punishment for sexual harassment:- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extent to three years and shall also be liable to fine.”
Now it has to be seen whether the accused has committed an offence falling u/s.7 of the POCSO Act or u/s.11 of the POCSO Act?
32.As per the oral testimony of PW.1 before this Court, she narrated the incident, which is extracted below:
“On 03.03.2018 I started to school by an auto belongs to the accused and accused took me to bushes under the bridge, gave me Rs.10/- and accused asked me to remove my pant and directed me to show my private parts, due to fear, I raised screams, then some of the passersby came to me and I informed the same to them, on their enquiry, on which, the accused ran away.”
33.The other witnesses i.e., parents (PWs.2 and 3) evidence is to the effect that the girl was sent in the auto of the accused to drop her at the 23 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
school and this incident was happened. The eye witnesses (PWs.4 and
10) also corroborated the version of PW.1 about the time, date and place of the offence and physical identity of the accused. The evidence of
PW.1-victim is not shaken during the cross examination to disbelieve her testimony. PW.1 has given a statement before the learned Magistrate which was recorded u/s.164 of Cr.P.C.. The animosity between the accused and the parents of the victim or victim was not shown by the accused or tutoring of the victim to depose against the accused is also not shown by the accused. In the 313 Cr.P.C. examination also, he did not whisper anything on those lines. The victim also identified the accused. The victim being a child of eight years and her testimony has to be believed when it inspires the confidence of this Court. In the present case, the testimony of PW.1 inspires such confidence. This
Court relied on the case law in DATTU RAMRAO SAKHARE AND
OTHERS v. STATE OF MAHARASHTRA [1997 (5) SCC 341] for the preposition that if the testimony of child witness inspires confidence, it is sufficient to record the conviction”.
34.The accused has taken the defence that the wrong doer was “Mallesh” who committed the offence as per 164 Cr.P.C. statement of the victim does not hold good in view of the observation of this Court in the earlier paragraphs. Since the accused has taken defence, when the prosecution has able to establish its case against the accused, the 24 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
burden of proof is on the accused to establish the fact that he is not “Mallesh” but “Yellesh” as defined in Section 106 of the Evidence Act.
The accused failed to adduce any evidence to prove that he is not “Mallesh” but “Yellesh” and he did not commit the offence and that “Mallesh” committed the offence. Apart from that, Section 29 of the
POCSO Act, there was presumption of the offence to presume that the person (accused) has committed or attempted to commit the offence, as the case may be, unless contrary is proved. The accused has failed to rebut the presumption laid down u/s.29 of the POCSO Act by proving of any animosity between himself and family of PW.1 and he was not “Mallesh” as stated by PW.1 in her 164 Cr.P.C. statement and not committed any offence. Section 30 of the POCSO Act permits the special Courts to presume for any offence under the act which requires a culpable mental state on the part of the accused, the existence of such mental state. The accused can take a defence and prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. As per the explanation to Section 30 of the
Act clarifies that “culpable mental state” includes the intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. As a whole, the evidence led by the prosecution through the PWs.1 to 10 and
Exts.P1 to P4 established that the accused with a sexual intent took
PW.1 in his auto to the scene of offence, thereby exhibited his intention 25 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
and harassed by asking her to show her private parts by removing the dress and that committed an offence of sexual harassment attracting u/s.11 of the POCSO Act. Thus, the prosecution has proved the case u/s.11 read with Sec.12 of the POCSO Act instead of u/s.7 read with 8 of the POCSO Act and the accused is liable for punishment. The said acts of the accused also constitute an offence of sexual harassment u/s.354
A(1)(i) r/w 354 A(2) of Indian Penal Code and the prosecution has proved the same and as such, the accused deserves for punishment u/s.354
A(1)(i) r/w 354 A(2) of the Indian Penal Code.
35.For the foregoing reasons, the prosecution has succeeded in proving the guilt of the accused for the offences punishable u/s.354A(1)
(i) read with 354A (2) of Indian Penal Code and Section 11 read with
Sec.12 of the POCSO Act beyond all reasonable doubt. The prosecution failed to prove the guilt of the accused u/s.7 read with 8 of the POCSO
Act and as such he is entitled for acquittal for the said offence.
36.In the result, the accused is found not guilty for the offence u/s.7 read with 8 of POCSO Act and accordingly he is acquitted u/s.235(1) of Cr.P.C. for the said offence. The accused is found guilty for the offence under Section 354 A(1)(i) read with 354 A(2) of the Indian
Penal Code and Section 11 read with Sec.12 of the Protection of Children 26 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
from Sexual Offences Act and accordingly the accused is convicted u/s.235(2) of Cr.P.C. for the said offences.
(Dictated to the Stenographer Gr.III, after her transcription, corrected and pronounced by me in the Open Court on this 21st day of July, 2022.) KokaDigitally signed by Koka Radha Devi Radha DeviDate: 2022.07.21 15:43:03 +0530
PRINCIPAL SESSIONS JUDGE,
WARANGAL,
FAC. SPECIAL SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF
RAPE & POCSO ACT,
WARANGAL.
37.Heard the accused on the quantum of sentence and he stated that; his age is 26 years, his parents are no more, he has one sister who is studying first Intermediate, he never worked as auto driver and supplied water cans, he has to lookafter the welfare of his sister, he has not committed any offence and he has no one to guide them.
38.The victim child in this case is below 10 years, a school going student and the offence committed by the accused is against the society and offence committed by him in the day time without any fear, being an auto driver taken the victim for dropping her in the school. Hence, for the foregoing reasons and taking into consideration the nature of offence committed by the accused against the victim child, this Court is not inclined to take any lenient view against him and to apply the 27 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
provisions of Probation of Offenders Act or u/s.360 Cr.P.C. to the accused.
39.Section 42 of the Protection of Children from Sexual Offences Act reads as under:
“Where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, Section 509 of the Indian Penal Code or Section 67B of the
Information of Technology Act, 2000 (21 of 2000), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”
40.The punishment provided under Section 11 read with 12 of the
POCSO Act is “whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine”. The punishment provided under Section 354 A((1)(i) read with 354 A (2) of 28 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
Indian Penal Code is “any man who commits the offence specified in clause (I) or clause (ii) or clause (iii) of Sub section (1) of Section 354 A of IPC, shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
41.As per Section 42 of the POCSO Act, this Court is inclined to convict the accused under Section 11 read with Section 12 of the POCSO
Act. Therefore, the accused is convicted u/s.235(2) Cr.P.C. and sentenced to undergo rigorous imprisonment for a period of three years and shall pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of three months for the offence u/s.11 read with section 12 of the POCSO Act.
(I)The remand period already undergone by the accused i.e., from 05.03.2018 to 03.07.2018 shall be set off under Section 428 of Cr.P.C.
(II)The unmarked non-valuable case property, if any, shall be destroyed after the expiry of appeal time.
(III)The accused is appraised about his right to prefer an appeal
before the Hon'ble High Court for the state of Telangana and he is
further informed that he will be provided legal aid counsel, if required.
(IV)Copy of Judgment is supplied to the accused.
(V)As the accused is convicted for the offence punishable under
Section 11 read with Sec.12 of the POCSO Act for committing assault against the victim girl, aged 8 years, this Court is of the considered opinion that the victim girl has to be compensated for her sufferance 29 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
and mental agony, as such an amount of Rs.1,00,000/- (Rupees one lakh only) is decided as compensation amount. Therefore, the Secretary,
District Legal Services Authority, Warangal is directed to take steps for payment of the said compensation amount of Rs.1,00,000/- to the victim girl at the earliest.
(Typed to my dictation by the Typist, corrected and pronounced by me in the Open Court on this 21st day of July, 2022.)
KokaDigitally signed
by Koka Radha
Radha
Devi
Date: 2022.07.21
Devi
15:43:39 +0530
PRINCIPAL SESSIONS JUDGE,
WARANGAL,
FAC. SPECIAL SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF RAPE &
POCSO ACT, WARANGAL.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION:FOR DEFENCE: PW.1 Victim girl.-None- PW.2 Father of victim. PW.3 Mother of victim. PW.4 Cheruku Chander PW.5 Ravula Laxmanlal PW.6 Banuka Yadaiah PW.7 M. Samba Murthy, SI of Police. PW.8 S. Venkatgesh, SI of Police. PW.9 M. Shailaja, WPC. PW.10 Md. Rafi.
DOCUMENTS MARKED.
FOR PROSECUTION: Ex.P1 is the Complaint given by PW.2. Ex.P2 is the Crime details form. Ex.P3 is Relevant portion in confession-cum- 30 OF 30 S.C. No.61 of 2019/POCSO Court, Warangal.
seizure panchanama. Ex.P4 is FIR. FOR DEFENCE: -Nil-
MATERIAL OBJECTS MARKED
-Nil-
Koka
Digitally signed by Koka Radha Devi
Radha
Date: 2022.07.21
Devi
15:43:54 +0530
PRINCIPAL SESSIONS JUDGE,
WARANGAL,
FAC. SPECIAL SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF RAPE &
POCSO ACT, WARANGAL.