Smt M. Babitha

IN THE COURT OF THE SPECIAL JUDGE FOR PROTECTION OF CHILDREN

FROM SEXUAL OFFENCES ACT­ cum ­ ADDL. METROPOLITAN SESSIONS

JUDGE: VIJAYAWADA.

Present: SMT. M.BABITHA 

V Addl. District & Sessions Judge cum Mahila Judge Court, Vijayawada.

FAC/Special Judge for Protection of Children

from Sexual Offences­cum­Addl.

Metropolitan Sessions Judge, Vijayawada.

Wednesday, this the 5 th day of December, 2018.

SESSIONS CASE No.19/2015

1.Name of the accused1.Manchi Gopi Babu Rao @ Gopi S/o Chinna, age 19 years, R/o. Plot No.1366, New Rajeev Nagar, Payakayapuram, Vijayawada.

2. Manchi Adilaxmi @ Chelluri Adilaxmi W/o Ramana, age 40 years, R/o. 47-13-25/4, 4th cross road, RTC colony, Patamata, Vijayawada.

2. ChargesU/Sec.344,366 of IPC & Sec.4 of Prevention of Children from Sexual Offences Act, 2012 alternatively U/s.376(2) r/w 376(2)(i) of IPC is framed against A1 & U/Sec. 344 of IPC & Sec.21(1)r/w 19(1) of Prevention of Children from Sexual Offences Act, 2012 framed against A2.

3. Finding of the JudgeFound guilty.

4. Sentence or orderIn the result, the accused No.1 is found guilty for the offence punishable U/Sec.344, 366 of IPC & Sec.4 of POCSO Act, 2012 & accused No.2 is found guilty for the offences U/Sec.344 of IPC & Sec.21(1) r/w 19 (1) of POCSO Act, 2012 and accordingly they are convicted under Section 235(2) of Cr.P.C. Therefore the sentence for alternative charge under Section 376(2)(i) of IPC is not imposed as the accused is punished under Section 4 of POCSO Act. Heard the accused on the quantum of sentence. The accused No.1 pleaded that he has old aged mother and sick and he has to look after his mother and she is dependent on him and he is sole bread winner to his family. The accused No.2 pleaded that she is having daughter who is 14 years and she is dependent on her and she is the sole bread winner of her family. Taking into consideration the facts and circumstances of the case, the accused are not entitled to benefit of Probation of Offenders Act. There are no grounds to take lenient view in 2 this case as the accused No.1 developed love with the victim/PW.2 and kidnapped her and detained her in the house of Accused No.2 and committed penetrative sexual assault against victim/PW.2 and Accused No.2 knowing that the victim/PW.2 is minor and confined in her house, the accused No.1 is sentenced to undergo Rigorous Imprisonment for a period of 10 years and also to pay fine of Rs.1,000/- (Rupees one thousand only) in default the accused No.1 shall undergo simple imprisonment for a period of one month for offence U/Sec.4 of Protection of Children from Sexual offences Act,2012 and he is further sentenced to undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs.1,000/- (Rupees one thousand only) in default the accused No.1 shall undergo simple imprisonment for a period of one month for the offence punishable under Sec.366 IPC and he is further sentenced to undergo rigorous imprisonment for a period of 3 years and also to pay a fine of Rs.500/- (Rupees five hundred only) in default the accusedNo.1shallundergosimple imprisonment for a period of 15 days for the offence punishable under Section 344 IPC. The Accused No.2 is sentenced to undergo rigorous imprisonment for a period of 3 years and also to pay a fine of Rs.500/- (Rupees five hundred only) in default the accused No.2 shall undergo simple imprisonment for a period of 15 days for the offence punishable under Section 344 IPC and she is further sentenced to undergo rigorous imprisonment for a period of 6 months and also to pay a fine of Rs.500/- (Rupees five hundred only) in default the accused No.2 shall undergo simple imprisonment for a period of 15 days for the offence punishable under Sec.21(1) r/w.19(1) of POCSO Act. All the substantive sentences imposed against A1 and A2 shall run concurrently. The remand period of the accused is given set off U/Sec.428 of Cr.P.C. The unmarked worthless property, if any, shall be destroyed after appeal time, after confirming that there is no appeal is pending. The accused are informed that they can prefer an appeal against the judgment before the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and for the State of Andhra Pradesh and they can approach the Legal Services Authority of the

Hon’ble High Court or the District Legal

Services Authority, Krishna District for Legal Aid, if necessary.

5.Prosecution Sri D.Sambasaiva Rao, Special Public conducted By:Prosecutor, III Addl. Dist.& Sessions Judge­cum­ ACB Court, Vijayawada.

3 6.Name of the Sri P.Paul, Advocate. Advocate for accused.

7. Cr.No. & Name ofCr.No.358/2014 of Nunna, P.S., the Police station.Vijayawada City.

8. PRC No. & Name of ----- the Committed Court

This case is coming today before me for consideration after hearing both sides on 27.11.2018 in the presence of Sri.D.Sambasiva Rao, Spe­ cial Public Prosecutor for complainant and of Sri.P.Paul, Advocate for the accused, and the matter having stood over for consideration, this Court delivered the following.

J U D G M E N T

1.The Inspector of Police, Nunna, Police Station, Vijayawada City, filed charge sheet against the Accused 1 and 2 for the offence U/Sec.344,366 of IPC,

Sec.4 of Prevention of Children from Sexual Offences Act, 2012 under

Section 376(2)(i) of IPC against A1 and under Sec.344 and 202 IPC in Crime

No.358/2014 of Nunna, Police Station, Vijayawada. 

2.The brief facts of the case as per charge sheet is that P.W.2/Dhara

Esteru Rani @ Esteru/victim studied 7th class and discontinued her studies.

P.W.1/Dhara Kumari who is mother of victim/P.W.2 used to sell vegetables in

Raithu Bazar and used to look after the welfare of P.W.2/victim. About one month back A1/Manchi Gopi Babu Rao @ Gopi was introduced through P.W.5 as a friend to P.W.2/victim. A1 and P.W.2/victim used to meet and talk very often and fell in love. They both decided to marry and with a view as their parents did not accept the same, they got decided to go away from their houses. On 07.08.2014 when P.W.2/victim called A1, he asked her to meet him at Pipula road center and he took her to the house of A2 and informed her as they are in love with each other and proposed to marry. Thereby A2 assured them to perform their marriage informing with their elders and allowed them in their house. While staying in the house of A2. A1 sexually assaulted the victim with inducement of marriage.

On 08.08.2014 at 19.00 hrs, P.W.1 along with P.W.3 turned up to Nunna

P.S and preferred a report about missing of P.W.2. P.W.12/N.Adi Sheshu

Varma, HC 1066 registered the report as FIR in Cr.No.358/2013 U/h Girl 4 missing of Nunna P.S, Vijayawada city on 08.08.2014 at 19.00 hrs and investigated into.

P.W.12/N.Adi Sheshu Varma,HC 1066 visited the scene of offence and examined P.W.1, P.W.3 and P.W.4, L.W.5, P.W.5, P.W.9 and recorded their statements.

On information P.W.13/K.Vara Prasad, C.I of police, Nunna P.S along with his staff proceeded to A2 house and found victim, A1 and A2 were present there and rescued victim from there.

P.W.2/victim preferred a report about the incident as per the said report of P.W.1, P.W.13/K. Vara Prasad, C.I of police, Nunna, P.S altered the section of law as 366,344,376(2)(i) of IPC, Sec.4 of POCSO Act,2012on 01.09.2014 at 18.00 hrs, from Girl Missing in Cr.No.358/2014 of Nunna P.S.

P.W.13/K.Vara Prasad, C.I of police, Nunna P.S, visited the scene of offence at RTC colony, Patamata, prepared rough sketch of scene and examined P.W.1, P.W.3,P.W.6 and L.W.9 and he send the victim to Medical examination.

On 01.09.2014 at 21.00 hrs, P.W.13 C.I of police, Nunna, P.S arrested accused at Nunna P.S, A1 got examined by forensic professor and produced

before the court and he was sent to judicial custody.

P.W.11/B.Anantha Swarna Kumari, Woman Sub Inspector of police recorded the statement of the victim/P.W.2 and forwarded to Nunna P.S.

P.W.7/G.Siva Rami Reddy, Asst. Forensic Professor who examined the accused opined that there is nothing to suggest that the individual is incapable of doing sexual intercourse.

P.W.13/ C.I of Police forwarded the material objects preserved from the victim/P.W.2 to APRFSL, Vijayawada and report is received by P.W.14.

P.W.14/Md.Sahera, C.I of police, Nunna P.S examined P.W.8 and recorded his statement and secured study certificate with date of birth of victim/P.W.2 from P.W.8.

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L.W.12/G.Jhansi Lakshmi, Asst. Professor, Department of Forensic

Medicine, GGH, Vijayawada who examined the victim/P.W.2 opined that the individual is aged about 16 to 17 years.

P.W.10/Dr. R.Sowjanya, Medical Officer, GGH, Vijayawada who examined the victim/P.W.2 and issued medical certificate and opined that ‘even though chemical analysis report came as negative clinically there is evidence of sexual intercourse’. After completion of investigation P.W.14 filed charge sheet against the accused Nos.1 and 2.

3.This court has taken cognizance for the offence U/s 344,366, 376(2)(i) of IPC & Sec.21(1)r/w 19 (1) of POCSO Act, 2012 against Accused 1 and 2.

4.This court after appearance of the Accused 1 and 2 furnished copies as contemplated U/s.207 Cr.P.C. After appearance of accused 1 & 2 and on hearing, charges U/Sec.344,366 of IPC & Sec.4 of POCSO Act,2012 alternatively 376(2) r/w 376(2)(i) of IPC is framed against A1 & U/Sec.344 of

IPC & Sec.21(1) r/w 19 (1) of POCSO Act, 2012 is framed against A2., read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

5. In order to prove its case, the prosecution has examined P.Ws.1 to 14 and got marked Exs.P1 to P12.

6.After closure of prosecution evidence the Accused 1 and 2 were examined U/s 313 Cr.P.C for the incriminating material found against the

Accused for which they denied the same and reported no defence evidence.

7.The counsel for the accused No.2 filed petition U/s 315 Cr.P.C and examined D.W.1 to D.W.3 and got marked Exs.D1 to D3.

8. Heard both sides.

9. Now, the points that arise for consideration are:

1.Whether the prosecution has proved the guilt for the offences U/Sec.344,366 of IPC & Sec.4 of POCSO Act,2012 and alternatively 376(2) r/w 376(2)(i) of IPC against 1st accused & U/Sec.344 of IPC & Sec.21(1) r/w 19 (1) of POCSO Act, 2012 is framed 6 against 2nd accused beyond reasonable doubt?

2.To what relief?

POINT No.1:-

10.The case of the prosecution that, Accused No.1 developed love with the victim girl/P.W.2 who is minor under the age about 16 years took away

P.W.2/victim and confined in the house of A2 , later had sexual intercourse with her against her will and consent which amounts to rape as the victim is minor girl under the age of 18 years and thus the accused kidnapped P.W.2 with an intent to compel her marriage and committed rape on her. A2 knowingly confined the victim in her house and she intentionally omitted to give information of offence to others.

11.P.W.1 mother of victim deposed in her evidence that when P.W.1 returned to home and asked her father where is her daughter, then her father replied that she did not return to home then herself and her mother P.W.1 made searches in her relatives houses and surroundings. Even P.W.3 stated that about the questioning of P.W.1 as to why their daughter did not return to the house with whom she had sent rice then herself and P.W1 enquired surroundings about her daughter later reported to the police.

12.P.W.2 who is victim girl she stated on 07.08.2014 herself and her mother went to provisions shop she purchased the rice and sent her back to their house and her mother left to Ryot bazaar, then she made call to A1 through phone andthen he informed her to come to Pipula road. Then A1 came over there and informed that elders will not agree for their marriage and made her to climb city bus and taken her to

Autonagar, RTC colony to the house of senior paternal aunt by name

Adilakshmi/A2. He introduced himself to her and informed that both are loving each other and intends to marry. Then A2 assured them to stay over there that she will perform their marriage after making elders to agree for the same. On 28.08.2014 while she was sleeping on the iron 7 cot in the verandah of their house, at about 10.30 P.M, A1 came over there and he stated that as both of them will get married if they had physical relation there will not be any problem. Then she stated that after marriage they will have sexual intercourse. Then A1 asked her that she is not having trust in him and had sexual intercourse with her and she was informed the whole incident to her mother. On 01.09.2014 police came to the house of A2 and brought back herself, A1 and A2 to

Nunna Police Station. P.W1 mother and P.W.3 grand mother of

P.W2/victim also stated in their evidence that their daughter informed about the whole incident.

13.P.W.4 who is the neighbour of P.W.2 , on 07.08.2014 at about 7.30 or 8.00 that she came to know she returned from work that P.W.2 is missing and she fell in love with one male person and after she came to know that the said person is A1. The evidence of P.W.4 is not admissible as she is hearsay witness.

14.The evidence of P.W.5 shows that he was acquainted with

Gopi or A1 through the son of his senior paternal aunt resident of New

Rajiv Nagar that P.W.2 used to call her as brother. Once he asked Gopi when they were speaking to each other and then Gopi informed him that they are lovers. P.W.2 used to call A1 on 07.08.2014 P.W.2 went along with Gopi.

15.P.W.7 is the doctor who examined accused physically and genital . He opined that the person Manchi Gopi Babu Rao @ Gopi is capable of doing sexual intercourse and also issued sexual offence report is marked as Ex.P3. To ascertain the age of P.W.2/victim, P.W.8

Head Master issued study and Date of Birth certificate of P.W.2/victim who has studied 7th standard in the year 2013-14. On perusal of Date of

Birth of the victim/P.W.2 is 07.10.1998, so by the time of offence the victim is 16 years old and she is minor.

16.The evidence of P.W.9 who is colleague of A1 shows that in the year 2014 he used to work in Beeruva company along with himself 8

A1 used to work in the said company. A1 informed that he used to love

P.W.2 and used to talk to her though phone. On 07.08.2014 A1 informed her that himself and P.W.2 are leaving.

In the cross examination of these witnesses the defence tried to elicit that there is no documentary proof to show that he worked in the said Beeruva company and that he is acquainted with A1, A1 worked in their company it has elicited that there is no documentary proof to show that A1 and P.W.2 talked to each other in phone. This court sees no reason to disbelieve the evidence of P.W.9 when he stated the name of the owner whether himself along with the accused and other persons are working.

17.P.W.19 Doctor who has examined the victim/P.W.2 on examination she found old hymen tears at 3 ‘o clock, 6’o clock and 9’o clock position. Introitus admitting two fingers loose. Cervix and vagina healthy. Vaginal smear & swab, cervical smear and swab, pubic hair, nails collected and preserved and sent for chemical analysis. Ultra sound normal, urine for pregnancy test negative. As per RFSL report the items 1 to 6 are examined and blood and semen not detected. Spermatozoa not detected on items 5 & 6, foreign material not found on items 3 and

4. After receipt of RFSL report she opined that even though chemical analysis report came as negative, clinically there is evidence of sexual intercourse.

In the cross examination of the Doctor the defence tried to elicit about the duty timings P.W.10 stated her duty timings morning 9.00 am to 4.00 pm. She attended regularly in those timings. She denied the suggestion that she was not on duty on 01.09.2014 at 8.30 pm, she was on night duty on the said night from 4.00 pm to next day morning 9.00 am, monthly she has to do 3 or 4 days night duties basing on the availability of the doctors. Further voluntaries in her parcuration register her attendance is mentioned. Nothing was elicited from the evidence of doctor to discredit her testimony she denied the suggestion that A1 did 9 not commit rape on the victim/P.W.2. She voluntaries that victim herself informed about A1 has taken her along with him and committed rape on her. She did not endorse on the first page of the wound certificate as it is continuation she signed on the second time. As per procedure. P.W.11 has recorded the statement of P.W.2 on the instructions of C.I of police.

18.The learned defence counsel argued and submitted in written arguments he submitted P.W.1 in her evidence at one times stated that since 3 years she was residing with parents house at New

Rajiv Nagar in Plot No.1682 , for another time she says at about 4 years back she returned to her house. So by the time alleged incident it is crystal clear appears that the P.W.1 is residing at her parents house since 3 years, the alleged offence has taken place about 4 years back and on the alleged date of incident on 07.08.2014 has not taken place.

19.One cannot depose with mathematical niceties as to years of residing with her parents and happening of the incident and she was a rustic witness.

20.The defence counsel further argued that P.W.1 deposed within one month the police has brought A1 and his senior paternal aunt and another person is Dw2

21. Here about the said another person is nothing was elicited from the cross examination of P.W.2, So, one cannot presume that he is

D.W.2

22.The defence counsel argued that P.W.14 stated that he did not give information to P.W.1 and their family members whereas P.W 1 stated in her chief examination that police informed her through telephone then visited the station and thereafter victim/P.W.2 brought from the house of A2. By that itself it cannot be assumed that information was not given by the police person there will be other police person through whom P.W.1 has received the information that her daughter brought to P.S.

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23.Further the defence counsel alleged that P.W.1 stated certain names of the villagers where they made search and that P.W.3 did not state about the place of the search and there is no corroboration in the evidence of P.W1 and 3.

24.Though the aspects are minor in nature one cannot expect the corroboration of the witnesses in between themselves, when the evidence of witnesses is consistent with their statement in Sec.161

Cr.P.C to the police.

25.The learned counsel for the defence further argued that there is no proof that P.W.2 was taken to the house of A2 and she did not state to any of the neighbours of the house of A2 that A1 brought forcibly on pretext of love and marriage and thereafter he had sexual intercourse with her and further A2 assured them to perform their marriage. Further A2 and her husband does not know that P.W.2, A1 had sexual intercourse and she did not inform about the same and he was not inflicted with the injuries.

26.No residents of locality heard cries of prosecutrix when she was raped it was not reporting to anybody about incident as held in “Vimal Suresh Kamble Vs Chaluverapinake Apal S.P and another” reported in 2003 Crl.L.J..

27.No injury was found on private parts, thighs, buttock, chest or back of prosecutrix. No witnesses of the place examined from where she was abducted and driver of jeep who carried prosecutrix and accused did not say if prosecutrix was taken by force implicit reliance could not be placed on testimony of prosecutrix because of infirmities as held in “Rajeshwar & others Vs State of Rajasthan” reported in 2005 (3) Crimes 444.

28.The learned counsel for defence relied on medical evidence did not corroborate her as no injury marks either in private parts or any where in body were noticed. Proper case to give benefit of doubt as held 11 in “Shankarilal v State of Rajasthan” reported 2006(1) Crimes 131.

29.The learned defence counsel relied that place and manner of incident is doubtful and absence of any injury on male organ of accused also renders prosecution story doubtful and accused is falsely implicated and accused is entitled to benefit of doubt as held in “Azal

Azmi v State of Madhya Pradesh” reported in 2006 Crl.L.J. 2762.

30.The learned counsel for defence relied there is no evidence to show that prosecutrix was taken by the appellants against her wishes. Evidently she was a wiling party and there is no acceptable evidence to conclude that prosecutrix to be under wrongly residing or to be wrongly confinement and that the age of the victim consent shown to be aged less than 18 years as held in “Balwant Sigh and another

Vs State of Rajasthan” reported in 2004 Criminal Law Journal 3673.

The above citations is not applicable to the present facts of this case as the prosecutrix is a minor in the present case and she has given her consent and the consent given by the minor is no consent in the eye of law.

31.The learned counsel for defence relied that prosecutrix herself going willingly with accused to get married which does not amount of abduction. Determination of conflicting age benefit of doubt must go to accused as held in “Satish Kumar vs. State” reported in 1988 Crl.L.J. 565.

32. When the accused made believe the victim/pw2 with his deceitful words and then had sexual intercourse then the question of shouting does not arise. Here one thing has to be observed that there is no resistance made by P.W.2 at the time of sexual intercourse as A1 made her believe with his deceitful words that as both of them will be married, nothing is wrong in having physical relationship. Though P.W.2 stated that she was not interested inspite of that A1 had sexual intercourse 12 with her stating that she is not having trust in him. So, the question of injuries not being inflicted does not arise.

33. The counsel for defence examined Dws 1 to 3 on his behalf D.w1 is the daughter of A2, Dw.2 is son-in-law of A3, D.W.3 is neighbour of A2.

D.ws 1 and 2 deposed that D.W1 came for 2nd delivery to the house of

A2 then police has taken A2, D.W1 and 2 to the station and later they have sent back D.W.1 and 2 and made A2 to stay back in the Police

Station. D.W.3 stated that D.W1 came for delivery along with her husband or D.W.2 to the house of A2. Through D.W.1 notarized copy of date of birth of her 3 children were marked as D1 to D3.

34. From the evidence of Dw.1 to 3 no one can infer that by the time of incident she was in the house of A2 and they were taken to police station. So, the evidence on defence is not useful in their favour.

35.Section 366 IPC defines as follows:

Sec. 366 of IPC – Kidnapping, abducting or inducing woman

to compel her marriage, etc.-

Whoever kidnaps or abducts any woman with intent that she

may be compelled, or knowing it to be likely that she will be

compelled, to marry any person against her will, or in order that

she may be forced or seduced to illicit intercourse, or knowing

it to be likely that she will be forced or seduced to illicit

intercourse, shall be punished with imprisonment of either

description for a term which may extend to ten years, and shall

also be liable to fine; and whoever, by means of criminal

intimidation as defined in this code or of abuse of authority or

any other method of compulsion, induces any woman to go

from any place with intent that she may be, or knowing that it is

likely that she will be, forced or seduced to illicit intercourse

with another person, shall also be punishable as aforesaid.

The ingredients or the first part of section requires;-

a) kidnapping or abduction of any women who with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or

b) in order that she may be forced or seduced on knowing it to be likely that she will be forced or seduced to sexual intercourse.

36.This court relied on the testimony of the victim can be acted upon without corroboration in material particulars. However, the court 13 finds it difficult to accept the version of the victim on its face value it may search for evidence direct or circumstance which we would lend assurance to her testimony as held in “State of Himachalpradesh Vs

Srikanth Sekhary”.

37. On perusal of evidence of P.W.1 she clearly deposed accused has taken her by making her board a bus and auto ricksaw to the house of senior paternal aunt’s house and 20.08.2014 while she was sleeping on iron cot in the varandah of their house at about 10.30 pm, he had sexual intercourse even though she refused for the same stating that as both of them will get marry if they had physical relation there will not be any problem. Further, the medical evidence also corroborated the testimony of the P.W.2 that clinically there is evidence of sexually intercourse as there were old hymen tears at 3’o clock, 6’o clock and 9’o clock position.

38.One has to bear in mind that apart no girl of tender age and her parents would try to jeoparadise her entire future by falsely implicating a person alleging forcibly sexually intercourse. Hence, false implication is rejected.

39.P.W.5 also corroborated to the testimony of P.W.2 that he got acquainted with A1 as they are neighbours of senior paternal aunt to the son of Senior paternalaunt and A1 informed that P.W.2 and himself are lovers. P.W9 who is the co worker of A1 also supported the version of

P.W.2 that they are lovers as to A1 informed him that he loved P.W.2 and talk to her through phone and 07.08.2014 he informed that they were leaving.

40.A2 failed to give information that when he has knowledge A1 has brought P.W.2 to her house and they confined her in their house and she also assured that she will perform the marriage after speaking the elders. A2 is liable for not giving information by confining P.W.2 in their house.

41.Section 344 IPC defines as follows:

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Sec. 344 of IPC- Wrongful confinement for ten or more days;-

Whoever wrongfully confines any person for ten days or

more, shall be punished with imprisonment of either

description for a term which may extend to three years, and

shall also be liable to fine.

42.Section 4 of Protection of children from sexual Offences Act, 2012 defines penetrative sexual assault which reads thus; penetrative sexual assault:-

Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

Section 21(1) of POCSO Act: Punishment for failure report or record a case- Any person who fails to report the commission of an offence under Sub-Section (1) of Section 19 or Section 20 or who fails to record such offence under subsection 2 of section 19 shall be punished with imprisonment of either description which may extend 6 months or with fine or both.

43.Section 376 IPC defines as follows:

U/Sec.376 of IPC –Punishment of rape- (2) who ever, commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

(i) whoever, commits rape on a woman when she is under sixteen year of age; of

44.The Accused made the victim/pw2 silent by his deceitful words and had sexual intercourse with her and the evidence of the doctor/P.W.12 corroborated the version of P.W.6/victim that Hymen is not intact the sexual intercourse was taken place. Basing on the said study certificate issued by the

Head Master the victim she child aged about 16 years as per the Sec.2(d) of

POCSO Act. It is also not in dispute that the accused is not potent.

45.Here in this case that the ingredients of Sec.342 IPC wrongful confinement is applicable as P.w.2 is minor and she was made to stay around 21 days in their house of A2 and the accused had sexual intercourse with pw2 which amounts to penetrative sexual assault under section 3 of POCSO Act.

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46. The learned counsel for defence relied on the evidence of prosecutrix does not prove that she was kidnapped and appellant had sex against her will as held in “Jagadish vs. State of Rajasthan” reported in 2003 (4) Crimes 10.

47.The learned counsel for defence relied Where no offence is established conviction for omission to inform of the offence is not sustainable has held in “Harishchandrasing Sajjansing Rathod and another person Vs The state of Gujarat” reported in 1973 criminal law general.

The above citation is not applicable as the main offence has to kidnap and penetrative sexual assault is proved basing on the testimony of pw2 which is credible and corroborated by medical evidence and testimony of other prosecution witnesses.

48.The prosecution has proved the guilt of the accused No.1 for the offence under Sections 366, 344 IPC and Section 4 of POCSO Act, and accused No.2 for the offence under section 344 IPC and Section 21(1) of POCSO Act. As the main charge under Section 3 of the Act that penetrative sexual act is proved which is punishable under Section 4 of

POCSO Act the alternative charge under Section 376(2) r/w Section 376(2)(i) IPC need not be discussed and it is left open.

POINT No.2:-

49. In the result, the accused No.1 is found guilty for the offence punishable U/Sec.344, 366 of IPC & Sec.4 of POCSO Act, 2012 & accused

No.2 is found guilty for the offences U/Sec.344 of IPC & Sec.21(1) r/w 19 (1) of POCSO Act, 2012 and accordingly they are convicted under Section 235(2) of Cr.P.C. Therefore the sentence for alternative charge under

Section 376(2)(i) of IPC is not imposed as the accused is punished under

Section 4 of POCSO Act.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court on this the 5th day of December, 2018.

Sd/-M.Babitha,

Mahila Sessions Judge, Vijayawada. FAC/Spl Judge for Protection of Children from 16

Sexual Offences­cum­Addl. MSJ, Vja.

Heard the accused on the quantum of sentence.

The accused No.1 pleaded that he has old aged mother and sick and he has to look after his mother and she is dependent on him and he is sole bread winner to his family.

The accused No.2 pleaded that she is having daughter who is 14 years and she is dependent on her and she is the sole bread winner of her family. 

Taking into consideration the facts and circumstances of the case, the accused are not entitled to benefit of Probation of Offenders Act. There are no grounds to take lenient view in this case as the accused No.1 developed love with the victim/PW.2 and kidnapped her and detained her in the house of Accused No.2 and committed penetrative sexual assault against victim/PW.2 and Accused No.2 knowing that the victim/PW.2 is minor and confined in her house, the accused No.1 is sentenced to undergo Rigorous

Imprisonment for a period of 10 years and also to pay fine of Rs.1,000/- (Rupees one thousand only) in default the accused No.1 shall undergo simple imprisonment for a period of one month for offence U/Sec.4 of Protection of

Children from Sexual offences Act,2012 and he is further sentenced to undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs.1,000/- (Rupees one thousand only) in default the accused No.1 shall undergo simple imprisonment for a period of one month for the offence punishable under Sec.366 IPC and he is further sentenced to undergo rigorous imprisonment for a period of 3 years and also to pay a fine of

Rs.500/- (Rupees five hundred only) in default the accused No.1 shall undergo simple imprisonment for a period of 15 days for the offence punishable under Section 344 IPC. The Accused No.2 is sentenced to undergo rigorous imprisonment for a period of 3 years and also to pay a fine of Rs.500/- (Rupees five hundred only) in default the accused No.2 shall undergo simple imprisonment for a period of 15 days for the offence 17 punishable under Section 344 IPC and she is further sentenced to undergo rigorous imprisonment for a period of 6 months and also to pay a fine of

Rs.500/- (Rupees five hundred only) in default the accused No.2 shall undergo simple imprisonment for a period of 15 days for the offence punishable under Sec.21(1) r/w.19(1) of POCSO Act.

All the substantive sentences imposed against A1 and A2 shall run concurrently.

The remand period of the accused is given set off U/Sec.428 of

Cr.P.C.

The unmarked worthless property, if any, shall be destroyed after appeal time, after confirming that there is no appeal is pending.

The accused are informed that they can prefer an appeal against the judgment before the Hon’ble High Court of Judicature at Hyderabad for the

State of Telangana and for the State of Andhra Pradesh and they can approach the Legal Services Authority of the Hon’ble High Court or the

District Legal Services Authority, Krishna District for Legal Aid, if necessary.

Sd/-M.Babitha,

Mahila Sessions Judge, Vijayawada. FAC/Spl Judge for Protection of Children from Sexual Offences­cum­Addl. MSJ, Vja.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: 

PW.1:D. KumariDW1: L.Sai Vani P.W.2: victim girlDW2:L.Narendra P.W.3: M.MalleswariD.W3:A.Nagamani P.W.4:K.kumar P.W.5:Sk. Khasim P.W.6: B.Subba Rao P.W.7:G.Siva Rami Reddy P.W.8:N.Sarveswara Rao P.W.9:M.Krishna P.W.10:S.Bhanu Prabhakar P.W11: P.A.Swarna Kumari P.W.12;N.Adiseshu varma P.W13:K.Vara Prasad P.W14:Md.Sahera Begum(CI) 

EXHIBITS MARKED FOR PROSECUTION:

Ex.P1: Signature of P.W.1 on statement. 

18

Ex.P2:Report of P.W.2 (altered FIR) Ex P3: Potency certificate Ex P4: Study certificate of P.W.2 Ex P5: wound certificate Ex P6: RFSL report Ex P7:Final opinion Ex P8: Original FIR Ex P9: Altered FIR Ex P10:Rough sketch Ex P11: Letter of advice Ex P12:Age determination certificate. 

EXHIBITS MARKED FOR DEFENCE: 

Ex D1: Notarized copy of Date of Birth certificate of L.Mokshagna Sai Sri Ex D2: Notarized copy of Date of Birth certificate of L.Tarun Nageswara Rao Ex D3: Notarized copy of Date of Birth certificate of L.Deva Venkata Harsha

MATERIAL OBJECTS MARKED: ­NIL­

Sd/­M.Babitha, Mahila Sessions Judge, Vijayawada. FAC/Spl Judge for Protection of Children from Sexual Offences­cum­Addl. MSJ, Vja. //True copy//

IN THE COURT OF SESSIONS JUDGE, MAHILA COURT,

VIJAYAWADA.

PRESENT: - Smt. M.Babitha,

SESSIONS JUDGE, MAHILA COURT, VIJAYAWADA.

Monday, this the 24th day of December, 2018.

SESSIONS CASE No.3/2016.

(P.R.C.No.4 of 2015 on the file of the court of Chief

Metropolitan Magistrate, Vijayawada).

1.Name of the accusedShaik Janibasha @ Jani, S/o.Shanavaz, 28 years, Muslim, Lenin Centre, Old Masjid Road, Old Singhnagar, Vijayawada.

2. ChargesU/s.376(2)(l), 450 & 324 IPC.

3. Finding of the Judge Found guilty.

4. Sentence or orderIn the result, the accused is found guilty for the offence punishable under Section 324

IPC and accordingly he is convicted under

Sec.235(2) of Cr.P.C. The Accused is not found guilty for the offence under section 376(2)(l) and section 450 IPC and he is acquitted for the said offences under section 235(1) of Cr.P.C.

When the accused is questioned regarding quantum of sentence, he pleaded mercy claiming that he did not commit any offence and he is having old aged parents and younger brother and they are dependent on him and he is the sole bread winner of his family.

Taking into consideration the facts and circumstances of the case, the accused is not entitled to benefit of Probation of Offenders

Act. There are no grounds to take lenient view in this case, as the accused beat P.W.1 and her mother/P.W.2 with stone thereby voluntarily caused hurt and accused is sentenced to undergo rigorous imprisonment for a period of 03 years (three) and to pay a fine of Rs. 1000/- (Rupees one thousand only) in default to undergo simple imprisonment for one month for the offence punishable under Section 324 2

IPC Both the sentences shall run concurrently.

The remand period of accused, if any, shall be given set off U/s.428 Cr.P.C.

The MO.1 to 7 shall be destroyed after appeal time is over, on confirming that no appeal is pending.

The accused is informed that he can prefer an appeal against the judgment before the Hon’ble High Court of Judicature at

Hyderabad for the State of Telangana and for the State of Andhra Pradesh and he can approach the Legal Services Authority of the

Hon’ble High Court or the District Legal

Services Authority, Krishna District for Legal

Aid, if necessary. 5.Prosecution Sri G. Daiva Prasad, Addl. Public Prosecutor, conducted By:Sessions Judge’s Court, Vijayawada.

6.Name of the Sri B.Panduranga Rao, Advocate. Advocate for accused.

7. Cr.No. & Name ofCr.No.337/2014 of Ajit Singh Nagar Police the Police station.Station, Vijayawada City.

8. PRC No. & Name of Chief Metropolitan Magistrate, Vijayawada in the Committal CourtPRC.No.4/2015.

J U D G M E N T

1.The Inspector of Police, Ajit Singh Nagar Police Station,

Vijayawada City, filed charge sheet against the accused for the offence under Sections 450, 376(2)(l), 354-A and 324 IPC in Crime No.337/2014 of Ajit Singh Nagar Police Station.

2.The brief facts of the prosecution case is that PW.1 is suffering with nerves weakness and used to consume liquor on the advice of

Doctor and addicted to drinking. At about 8 years back due to paralysis the left leg and left hand is not working and she is physically incapable of doing anything. The accused used to visit the house of

PW.1 and making ‘galata’ with her in drunken state inspite of warning given by PW.1 and her mother.

3

On 24.9.2014 PW.1 along with LW.8 went to ‘Aagadu’ movie, consumed liquor and return to house at 11.45 p.m. On 24/25.9.2014 at about 12.00 mid night the accused with an intent to have forcible sexual intercourse with PW.1 trespassed into her house, abused L.W.8 and compelled her to come so saying that “Raave Lanja and sleep with him”. Due to fear LW.8 hided under the cot when PW.1 questioned, the accused beat her with stone on her head, resulting in which she sustained bleeding injury. Thereafter the accused dragon PW.1 from the house, confined L.Ws.1 to 4 and 8 in the house, beat PW.1 with stone had forcible sexual intercourse with PW.1 against her will and consent putting her in fear death or injury. P.Ws.3, 4, 8 and 6 on hearing cries rushed there and separated the accused from PW.1 and rescued PW.2, PW.5 and LW.8. On the alert made by LW.8 to 108 ambulance, in which P.Ws.1 and 2 was shifted to Government General

Hospital, Vijayawada. Thereafter, PW.1 came to Ajith Singh Nagar

Police Station, Vijayawada and made a report at about 8.30 p.m. to

PW.12, who inturn registered a case in Cr.No.337/2014 under

Sec.376(2)(l), 324 IPC and took up investigation, visited the scene of offence, prepared scene observation report in the presence of mediators, seized the slab stone piece, prepared rough sketch, examined the witnesses and send P.Ws.1 and 2 for medical examination and seized torn cloth of PW.1.

On 28.9.2014 PW.12 arrested the accused at 5.00 p.m. in the presence of mediators and seized cloths worn by him under the cover of mediators report and sent him for judicial remand. PW.12 got recorded the statement of PW.1 under Sec.164 Cr.P.C. LW.12/Medical officer examined PW.1 and opined that there is no evidence of recent intercourse and cannot rule out sexual assault. LW.13/Medical Officer examined P.Ws.1 and 2 and opined that they sustained simple injuries.

LW.14/Medical officer examined the accused and opined that there is 4 nothing to suggest that the accused is not capable of performing sexual intercourse. After completion of investigation, LW.16 filed charge sheet.

3.The Chief Metropolitan Magistrate, Vijayawada has taken the cognizance of the offence under Sections 450, 376(2)(l) and 354-A of

IPC and furnished copies of documents to the accused as contemplated

U/s.207 Cr.P.C. and committed the case to the Metropolitan Sessions

Judge, Vijayawada by following the procedure laid down U/s.209 Cr.P.C.

4.The Metropolitan Sessions Judge, Vijayawada after taking the case on file, made over the same to this court for disposal according to law. After appearance of accused and on hearing, charges u/s.376(2)(l), 450 and 324 of IPC are framed against the accused and read over the said charge and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

5.In order to prove its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P1 to P13 and M.Os.1 to 7.

6. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. for the incriminating material found against him, for which he denied to be false and pleaded innocence and reported no defence evidence.

7.Heard both sides.

8.Now, the points that arise for consideration are:

(i)Whether the prosecution has proved the guilt of accused for the offence punishable under Sections 376(2)(l), 450 and 324 IPC beyond reasonable doubt?

(ii)To what relief?

POINT No.(i):-

9.The case of the prosecution is that on 24.9.2014 PW.1 along with

LW.8 returned from cinema, consumed liquor at that time the accused insisted LW.8 to come with him, due to fear she hided under a cot 5 accused trespassed into their house, beat PW.1 and her mother PW.2 and, then he forcibly drag PW.1 and had sexual intercourse.

10.PW.1 who is the victim stated that she is suffering with nervous weakness, then the Doctor suggested her to consume liquor. At about 7 or 8 years back she got paralysis of left hand and left leg due to the advice of the Doctor she got addicted to consume liquor. She narrated the incident that at about 7 or 8 years back she got paralysis of left hand and left leg due to the advice of the Doctor she got addicted to consume liquor. About 4 years back while she was returning along with

LW.8 after watching cinema of second show in Santosh Theatre, then they have consumed liquor at about 12.00 mid night they have returned to their home situated at Old Masjid, Ajit Singh Nagar, at that time her mother/PW.2, her brother/LW.3 and her daughter/PW.5 were present in the house, then they got down the auto and while entering into the house the accused asked them to stop, then he bet her friend/LW.8 on her cheeks and she got scared and hided herself underneath the cot, then the accused came to their house and caught hold of her tuft and torned the nighty and when her mother came to rescue her, he beat her mother and also beat her daughter. At that time her brother was sleeping due to illness and blood is oozing from the injuries caused to her mother, then the accused have forcible sexual intercourse with her after he has torned her nighty. At that time

L.Ws.5 to 7 who are at the Masjid came to rescue her by hearing her cries, then she was shifted to Government Hospital in 108 ambulance and on the next day she reported to the police.

The learned Additional Public Prosecutor sought permission from this court as PW.1 resiled in some aspects and she was cross examined and in the cross examination, PW.1 admitted that they returned at about 11.45 p.m. in the night to their house, when herself, her mother, her brother, her daughter and LW.8 were in the house on 24/25.9.2014 6 in the mid night at about 12.30 a.m. accused came in intoxicated state and called LW.8 “Rave Lanja Natho Paduko”, then LW.8 scared of accused and she hided herself beneath the cot, then her mother asked the accused why he is using force, then the accused beat her mother with a stone on her head and she sustained bleeding injury and fell down. At that time her brother was in intoxicated state, then her daughter was crying loudly, then the accused has closed the doors and pulled her forcibly outside and closed the doors, then he has taken her to verandah (sandu) opposite to her house and made her fell on the ground then when she shouted loudly the accused beat her with a stone on her head, then PW.3, PW.4, PW.8 and LW.8 came out there and pulled the accused from her, then she opened the door, her daughter, her mother and her brother and LW.8 came outside and shifted her in 108 ambulance and got treated.

11.PW.2 is the mother of PW.1 has supported the version of PW.1 that after their daughter PW.1 and LW.8 returned from cinema at about 12.00 mid night the accused has knocked the door, then she did not open the door stating that they are not of that type and then the accused has forcibly pushed the door. At that time her son/LW.3 is in intoxicated state and he was sleeping. The accused entered into their house and he tried to forcibly commit rape on LW.8, but she somehow resisted and hided under the cot, then he has dragged PW.1 to outside and bolted the door when herself and PW.5 was shouting from inside and the accused has done something against her daughter/PW.1. Then some persons came and open the door. Then she came outside the accused has beat her with a stone on her head and she sustained bleeding injury.

12.Further, the pw5/daughter of PW.1 stated that in the mid night the accused has knocked the door and when opened the door her grandmother questioned why he was doing galata at their house, then 7 the accused has bolted inside and dragged her mother. Thereafter,

PW.3, PW.4, PW.6 and PW.8 have pulled the accused who was lying on her mother/P.W.1 and separated him. Then her mother has opened the door and thereafter she was shifted to hospital in 108 ambulance.

13.PW.3 who was present along with his friends PW.4, PW.6 and

PW.7 at old Masjid stated that about 3 years back when PW.1 and LW.8 returned from cinema the accused was in intoxicated state, then the accused called LW.8 to come with him and to fulfill his lust, then LW.8 got scared and she has hidden herself under the cot in the house of

PW.1, then the accused has beat PW.1 and also PW.2 and dragged PW.1 in the verandah and tried to commit rape on her. Then by hearing her cries he went over there and pulled the accused from the victim. In the cross examination of this witness it was elicited that he did not saw that the accused has beat PW.1 and also PW.2, that there is a road in between the Masjid and the house of PW.1 and further tried to elicit that there were houses surrounding the house of PW.1 and if small sound arises it could be heard by other one. But the witness volunteers that on the date of incident nobody came to the scene of offence except himself and his friends.

14.PW.4 who was present at the Masjid along with PW.3, PW.6 and

PW.7 by hearing the loud cries from the house of PW.1, then went and saw PW.1 was injured on her head and when they questioned her, she stated that the accused came to her to commit rape. In the cross examination made by the learned Additional Public Prosecutor after seeking permission from this court, P.W.4 admitted that while they sat at Masjid on 24/25.9.2014 at the bench along with his friends, he heard loud cries from the asbestos shed of PW.1, then herself and her friends went over there and the accused who is suffering from paralysis of left hand and left leg committed rape on PW.1. Then they have separated the accused and PW.1. Thereafter he ran away from that place. In the 8 cross examination done by the defence after recalling the witness after 15 days of the chief examination he says that he did not see the accused committed rape on PW.1.

15.PW.6 also stated the same version as his friends PW.3 they have separated the accused who is lying on PW.1 and thereafter shifted her to the hospital.P.W.8 stated that in the year 2014 at about 12.00 hrs, in the night himself P.W.3, P.W.4 and P.W.6 sat on bench at Masjid and they heard loud cries from the house of P.W.1 and saw that P.W.1 is on with injury on head when the accused was present over there. Then they have shifted to the hospital in 108 ambulance.

16.The learned Addl. Public Prosecutor cross examined the witness after obtaining permission from this court as the P.W.8 resiled. The evidence of the hostile witnesses need not be rejected in toto it can be relied to the extent it is favourable to the prosecution. From the evidence of P.W.8 the accused was present at the scene of offence and

P.W.1 is on floor with injury on head.

17.P.W.11 is the doctor who examined accused on 09.10.2014, on physical and genital examination he opined that there is nothing to suggest that the person Sk. Johny Basha @ Jhony S/o Shanawaz is in capable of doing sexual intercourse.

18.P.W.12 is the Inspector of Police, Ajit Singh, Nagar P.S he has registered the case in Crime and examined the witnesses and recorded their statements. He observed the scene and seized clothes of the victim torn yellow colour langa, biscuit colour with red stripes nighty, gold spot colour jacket and also slab stone pieces 2 in number Mos 1 to

5. On 28.09.2014 at 19.30 hrs, on credible information he apprehended the accused at his house opposite road to old Masjid

Singh Nagar, Vijayawada. Thereafter, the accused confessed about his guilt. He has seized cement colour lower containing black and red colour stripes on both sides and it was mentioned as poster. He also 9 seized white and ratnavali colour mixed full hands shirt. On 13.10.2014 he has received wound certificate of the victim of P.W.1.

The cross examination of P.W.12, it was elicited that P.W.1 used to do prostitution previously. Whereas P.W.1 stated that L.W.8 used to do prostitution and she never does prostitution.

19.After the incident PW.2/mother and PW.5/daughter stated differently about who has opened the door and there is a discrepancy in the evidence of PW.2 after the incident when she opened the door the accused has beat her. Whereas, PW.1 states that after entering itself the accused has beat her mother. No doubt whether initially or subsequently the accused has beat her mother and herself. PW.2 is a rustic witness who is aged could not say exactly when she was beat by the accused. Even the same was not elicited in the cross examination.

P.W.7 is the doctor who issued wound certificate on examination of

P.W.1 and P.W.2. The Doctor has examined P.W.1 at 12.41 pm on 27.09.2014 and found the following injuries.

1. Sutured injury /occipital region region 1cm in left.

He opined that the said injury is simple in nature caused by blunt object the age of wound is more than 24 hours prior to his examination. The stone will also come under the purview of the blunt object.

20.The doctor who examined as P.W.2 at 12.43 pm, on 27.09.2014 and the following injuries.

An abrasion over left side forehead 2 cm x 0.5 cm.

He opined that the said injury is simple in nature caused by blunt object. The stone will come under the purview of the blunt object and above said injury is possible with the stone.

In the cross examination it is elicited that one day before the injuries has taken place basing on inflammatory reaction and colour of 10 wound, he has certified the injuries have occurred before 24 hours, the injury occurred due to any stone.

21.P.W.9 is the mediator in whose presence the police observed the scene of offence and seized Mos 1 to 5 clothes of the victim and two slap stones. On 29.08.2014 at 7.30 pm, in the night police has apprehended in the presence and seized Mos 6 and 7 clothes of accused.

22.P.W.10 is the doctor who examined the victim/P.W.1. on 26.09.2014 at about 6.30 pm, who accompanied by WPC 2925 of A.S

Nagar P.S., and found the following injuries the lady moderately and nourished conscious coherent, paressis of left upper limb and lower limb plus sutured wound about 5 cm with 4 sutures seen over the back of the head. No other injuries noticed. Per abdomen soft, external genetalia healthy. Pubic hair no matting, no discharge, per vagine no injuries noticed, introitus patulas, easily admitting two fingers.

Perspeculum cervix paresis, white discharges, per vaginal retroverted bulky, mobility restricted, forensis free i.e., vaginal swab, smear, of cervical swab, smear, pubic hair clippings reserved for chemical analysis the wound certificate is marked Ex.P7. He opined after receipt

RFSL report, there is no evidence of any recent sexual intercourse and the final opinion is marked as Ex.P8.

In the cross examination it is elicited that there is no recent sexual intercourse as per Ex.P8. There is no change in vagina, presence of perennial tears, mating of pubic hair, semen discharge to show recent sexual intercourse.

23.On perusal of evidence of P.W.1/victim the accused trespassed into her house and torn her clothes and caught hold her tuft and when her mother/ P.W.2 came to rescue her and also beat P.W.2 and P.W.5 and had forcible sexual intercourse with P.W.1 by taking her into ‘varanda’(sandu opposite to their house) then P.W.3, P.W.4 and P.W.6 11 came out their and rescued her by pulling the accused. P.W.2/ mother of P.W.1 stated that the accused has bolted them inside and dragged

P.W.1 and he has done something. From the evidence of P.W.3, P.W.4,

P.W.6 and P.W.8 on hearing the cries from the house of P.W.1 they went out and separated P.W.1 from the accused. Nobody has seen the accused committed the rape on P.W.1 including P.W.2 and P.W.5 as they came out side after door is opened. The medical evidence also did not support the version of P.W.1,that accused committed rape on her as there is no sexual intercourse in recent times. But the evidence of

P.W.3, P.W.4, P.W.6 and P.W.8 shows the presence of the accused and from the evidence of the P.W.3 that Accused tried to commit rape on

P.W.1, P.W.4 came to know from P.W.1 that accused tried to commit rape. So P.W.3 , P.W.4 and P.W.6 further stated to separate accused from P.W.1. As per the version of P.W.3, P.W.4, and P.W.6 they went over the scene on hearing cries.So, nobody has seen rape is committed against P.W.1. In view of the testimony of the P.W.4,P.W.5,P.W.6 and

P.W.8 and the medical evidence it shows that the rape is not committed against the P.W.1 by accused .

Sec. 442 of IPC deals with house trespass;-

Whoever commits criminal trespass by entering into or remaining

in any his building, tent or vessel used as a human dwelling or any

building used as a place for worship, or as a place for the custody

of the property, is said to commit “house trespass”.

24.The present case the accused did not enter into the house of

P.W.1 with intent to commit criminal trespass with regard to the property in question. At the same time when the offence Under

Section 376 IPC is not proved when the purpose for which the accused set to have entered into the house of victim itself does not constitute offence following 376 IPC this aspect may fallen into insignificance. As such the offence under section 450 IPC is not made out.

Section 324 IPC reads as follows:

Sec.324. Voluntarily causing hurt by dangerous weapons

or means:- 12

Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire, or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both. 

25.Here the accused voluntarily caused hurt by entering into the house of the victim against P.W.1 and her mother P.W.2 with two stones the said stones were recovered from the scene of offence and the stones will come under dangerous weapon. The testimony of P.W.1 was supported by the medical evidence as to the injuries caused and further P.W.2, P.W.4, P.W.6 and P.W.8 also supported about the injuries caused on the victim and it was elicited from the doctor/P.W.10 stone is blunt object and there is possibility of these injuries with the object.

26.The prosecution has proved the guilt of the accused for the offence under section 324 IPC and failed to prove the guilt of the accused for the offence under section 376(2)(L) and 450 IPC.

POINT NO.2:-

27.In the result, the accused is found guilty for the offence punishable under Sections 324 IPC and accordingly he is convicted under Sec.235(2) of Cr.P.C. The Accused is not found guilty for the offence under section 376(2)(l) and section 450 IPC and he is acquitted for the said offences under section 235(1) of Cr.P.C.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court this the 24th day of December,

2018.

Mahila Sessions Judge, Vijayawada. When the accused is questioned regarding quantum of sentence, he pleaded mercy claiming that he did not commit any offence and he is having old aged parents and younger brother and they are dependent on him and he is the sole bread winner of his family.

Taking into consideration the facts and circumstances of the case, the accused is not entitled to benefit of Probation of Offenders

Act. There are no grounds to take lenient view in this case, as the accused beat P.W.1 and her mother/P.W.2 with stone thereby 13 voluntarily caused hurt and accused is sentenced to undergo rigorous imprisonment for a period of 03 years (three) and to pay a fine of Rs.

1000/- (Rupees one thousand only) in default to undergo simple imprisonment for one month for the offence punishable under Section 324 IPC Both the sentences shall run concurrently. The remand period of accused, if any, shall be given set off U/s.428 Cr.P.C.

The MO.1 to 7 shall be destroyed after appeal time is over, on confirming that no appeal is pending. The accused is informed that he can prefer an appeal against the judgment before the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and for the State of Andhra Pradesh and he can approach the Legal Services Authority of the Hon’ble High Court or the

District Legal Services Authority, Krishna District for Legal Aid, if necessary.

Mahila Sessions Judge, Vijayawada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PROSECUTION: PW.1: S.Vijaya Durga. PW.2: S.Nagamani. PW.3: Sk.Moulali. PW.4: Sk.Hanif. PW.5: S.Surya Bhavani. PW.6: Patan Sharif Khan. PW.7: Dr.Radha Krishna. PW.8: Sk.Basha. PW.9: G.Sowri. PW.10: Dr.Shobitha. PW.11: Dr.G.Siva Rama Reddy. PW.12: V.Pavan Kishore. PW.13: B.Bala Murali Krishna.

WITNESSES EXAMINED FOR DEFENCE: -NONE-

EXHIBITS MARKED FOR PROSECUTION:

Ex.P.1: Report of PW.1. Ex.P.2: Wound certificate. Ex.P.3: Wound certificate. Ex.P.4: Sec.161 Cr.P.C. statement of PW.8. Ex.P.5: Scene observation report. Ex.P.6: Mediator report. Ex.P.7: Wound certificate. Ex.P.8: Final opinion. Ex.P.9: Sexual report of accused.

14

Ex.P.10: FIR. Ex.P.11: Rough sketch of scene of offence. Ex.P.12: Letter of advice. Ex.P.13: RFSL report.

EXHIBITS MARKED FOR DEFENCE: -NIL-

MATERIAL OBJECTS MARKED:

MO.1: Yellow colour langa of PW.1. MO.2: Biscuit colour with red strips nighty of PW.1. MO.3: Goldspot colour jacket of PW.1. MO.4: Slab stones. MO.5: Slab stones. MO.6: Shirt. MO.7: Night pant.

Sd/-M.Babitha

Mahila Sessions Judge, Vijayawada.

IN THE COURT OF THE SPECIAL JUDGE FOR PROTECTION OF CHILDREN

FROM SEXUAL OFFENCES ACT­ cum ­ ADDL. METROPOLITAN SESSIONS

JUDGE: VIJAYAWADA.

Present: SMT. M.BABITHA 

V Addl. District & Sessions Judge cum Mahila Judge Court, Vijayawada.

FAC/Special Judge for Protection of Children

from Sexual Offences­cum­Addl.

Metropolitan Sessions Judge, Vijayawada.

Monday, this the 17 th day of December, 2018.

SESSIONS CASE No.42/2015

1.Name of the accusedNakkala Sundar @ Manoj S/o Naga Raju, age 20 years, R/o. Girijana Colony, Turpuveedi, near flowers garden, Guduru Mandal, Nellore District.

2. ChargesU/Sec.6 of Prevention of Children from Sexual Offences Act, 2012 alternatively U/s.376(l) of IPC.,

3. Finding of the JudgeFound guilty.

4. Sentence or order In the result, the accused found guilty for the offence punishable U/Sec.6 r/w 5(k) of

Protection of Children from Sexual Offences

Act, 2012 , and accordingly he is convicted under Section 235(2) of Cr.P.C. Therefore the sentence for alternative charge under Section 376(2)(l) of IPC is not imposed as the accused is punished under Section 6 r/w 5(k) of POCSO

Act.

Heard the accused on the quantum of sentence. The accused pleaded that he did not commit any offence and he has wife and children and they are dependent on him and he is sole bread winner to his family.

Taking into consideration the facts and circumstances of the case, the accused is not entitled to benefit of Probation of Offenders

Act. There are no grounds to take lenient view in this case as the accused committed penetrative sexual assault against victim/PW.6 who is mentally challenged minor girl, the accused is sentenced to undergo Rigorous

Imprisonment for a period of 10 years and 2 also to pay fine of Rs.2,000/-(Rupees two thousand only), in default, accused shall undergo simple imprisonment for a period of one month for offence U/Sec.6 r/w 5(k) of

Protection of Children from Sexual offences Act, 2012.

The remand period of the accused is given set off U/Sec.428 of Cr.P.C.

The Property i.e. Mos 1 and 2 shall be destroyed after appeal time, after confirming that there is no appeal is pending.

The accused is informed that he can prefer an appeal against the judgment before the Hon’ble High Court of Judicature at

Hyderabad for the State of Telangana and for the State of Andhra Pradesh and he can approach the Legal Services Authority of the

Hon’ble High Court or the District Legal

Services Authority, Krishna District for Legal

Aid, if necessary. 5.Prosecution Sri D.Sambasaiva Rao, Special Public conducted By:Prosecutor, III Addl. Dist.& Sessions Judge­ cum­ACB Court, Vijayawada. 6.Name of the Smt.K.Vara Prasada Rao, Advocate. Advocate for accused.

7. Cr.No. & Name ofCr.No.115/2015 of A.S.Nagar, P.S., Vijayawada the Police station.City.

8. PRC No. & Name of ----- the Committed Court

This case is coming today before me for consideration after hearing both sides on 12.12.2018 in the presence of Sri.D.Sambasiva Rao, Spe­ cial Public Prosecutor for complainant and of Sri. K.Vara Prasada Rao, Advocate for the accused, and the matter having stood over for consider­ ation, this Court delivered the following.

J U D G M E N T

1.The Inspector of Police, A.S.Nagar, Police Station, Vijayawada City, filed charge sheet against the Accused for the offence U/s.376(l) IPC & Sec.6 of

Prevention of Children from Sexual Offences Act,2012 in Crime No.115/2015 of A.S.Nagar, Police Station, Vijayawada. 

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2.The brief facts of the case as per charge sheet is that P.W.1/Nabba

Danamma/mother of victim girl is resident of G+3 Apartment block No.21 TF 2 New Raja Rajeswari pet, A.S.Nagar, Vijayawada and her husband is eking out by riding rickshaw and she is living by grading vegetables at

Kaleswararao market. They got two female children, her elder daughter by name Nabba Korlamma/victim/P.W.6 aged about 14 years, while her younger daughter by name Pydemma aged about 10 years and her elder daughter/victim/P.W.6 is mentally retarted girl from her childhood. She and her husband used to wake up early in the morning 5.00 hrs and go for attending their works and they return home at night. On 01.04.2015 evening 16.45 hrs, her elder sister son by name Appanna/L.W.6 informed that the accused/Sundar@ Manoj committed rape on her elder daughter/P.W.6 and asked her to come and learnt through one Nagamani who is residing in the same block that the accused/Manoj took her elder daughter/P.W.6/Korlamma on the terrace of the building, when she went to the terrace, she witnessed the said Manoj/accused was found without clothes on his body, he also removed the clothes of victim/P.W.6/Korlamma and committed rape on her by slapping her, then she came down from the terrace and again rushed to the scene taking her husband and one

Sk.Khasim who is the neighbour, by which time the Accused/Manoj came down wearing his clothes on seeing them he pushed both her husband and

Khasim aside and took to his heels.

Basing on the report of P.W.1, P.W.13/B.Bala Murali Krishna (CI) registered the same as FIR in Cr.No.115/2015 U/Sec.376(2)(l) IPC on 01.04.2015 at 18.00 hrs and investigated.

During the course of investigation, P.W.13/B.Bala Murali Krishna(CI) visited the scene of offence, securing the mediators(L.W.9 &10) observed the scene in the presence of mediators and got drafted observation report and also prepared rough sketch of the scene and examined as many as seven witnesses and recorded their statements U/Sec.161(3) Cr.P.C.

4

L.W.14 recorded the statement of victim/P.W.6 with the help of P.W.5.

P.W.12/K.Purna Kumari on the requisition of P.W.13/Bala Murali Krishna (CI) she recorded the statement of victim with the help of P.W.5.

P.W.13/Bala Murali Krishna sent the victim girl/P.W.6 to GGH,

Vijayawada under escort for medical examination and also for conducting age determination test.

P.W.13/Bala Murali Krishna, on 03.04.2015 at 10.00 hrs arrested the accused at block No.36, New R.R.Pet, Vijayawada in the presence of mediators i.e.L.W.19 & L.W.11 and also seized the clothes of the accused and sent to GGH, Vijayawada for medical examination for potency test and produced him before this court for judicial remand.

P.W.13 produced P.W.3 and P.W.5 and victim/P.W.6 before the court of II

MM for Rlys, Vijayawada to record the statements U/s 164 Cr.P.C. The 164

Cr.P.C statement of victim girl was recorded with the help of P.W.5 who is secretary of Annamma Dumb & Deaf school at Ibrahimpatnam and expert in understanding the mentally ill students who could express their language by signs and gestures.

P.W.13/Bala Murali Krishna sent the material objects preserved by M.O (P.W.13) while conducting medical examination on the victim girl/P.W.6 to

Asst. Director, RFSL, Vijayawada for analysis report.

P.W.9/Dr.B.Srinu Nayak, Medical Officer, who conducted potency test on the accused certified that there is nothing to suggest that the accused is not capable of performing sexual intercourse or Act of Coitus.

P.W.9, M.O who conducted age determination examination on the victim girl/P.W.6 opined that on physical, dental and radiological examination and the opinion that the individual is aged about 17 to 18 years and also issued certificate to the victim.

After receipt of age determination certificate of the victim/P.W.6 from

M.O(P.W.9), it is proved that the victim/P.W.6 is minor and the Asst. Director,

RFSL, Vijayawada issued his opinion after analyzing the material objects, the 5 items 1 to 6 are examined. Spermatozoa are not detected on items 5 and 6.

Foreign material is not detected on items 3 and 4.

P.W.10/B.Sailaja, C.M.O, M.O basing on the opinion of RFSL, Vijayawada issued her final opinion stating that hymen not intact and introitus admitting one finger loose and possibility of sexual intercourse cannot be ruled out.

3.This court has taken cognizance for the offence U/Sec.6 r/w 5(k) of

POCSO Act alternatively Sec.376 (2) r/w 376 (2)(l) of IPC.

4.This court after appearance of the Accused furnished copies as contemplated U/s.207 Cr.P.C. After appearance of accused and on hearing, charge U/Sec.6 r/w5(k) of Protection of Children from Sexual Offences Act, 2012 alternatively U/Sec.376(2)(l) of I.P.C., read over and explained to the

Accused in Telugu for which he pleaded not guilty and claimed to be tried.

5. In order to prove its case, the prosecution has examined P.Ws.1 to 13 and got marked Exs.P1 to P14.

6.After closure of prosecution evidence the Accused was examined

U/s 313 Cr.P.C for the incriminating material found against the Accused for which he denied the same and reported no defence evidence.

7. Heard both sides.

8. Now, the points that arise for consideration are:

1.Whether the prosecution has proved the guilt of the accused for the offences U/Sec.6 r/w 5(k) of Protection of Children from Sexual Offences Act, 2012 alternatively U/Sec.376(2)(l) of I.P.C., beyond reasonable doubt?

2.To what relief?

Point:

9.The case of the prosecution that accused committed rape on

the mentally challenged girl/ victim / P.W.6 who is aged about 17 to 18

years.

10.P.W.9 is the Doctor who examined the victim/P.W.6 physically,

dental and radiological examination and opined that the victim is aged

6

about 17 to 18 years and he issued age determination certificate Ex.P3.

So, the victim is a child U/s 2 (D) of the POCSO Act 2012.

11.Further, the Doctor/P.W.11 who examined the victim/pw6, daughter of Chinna R/o 15th ward, Krishna Dist., and issued a certificate of

disability mentioning that mental retardation is moderate, I.Q.43% cause of

Disability Progenitor, birth injury epilepsy percentage of disability is 75%.

12.P.W.11 issued disability certificate Ex.P8 and the medical board

of Govt. General Hospital issued I.D card to the victim/P.W.6. On perusal of

Ex.P8 and P9 which was issued by a team of doctors of Govt. General

Hospital, Vijayawada and also a testimony of the doctor P.W.11, it shows

that the victim is mentally challenged person. Nothing was elicited from the

cross examination of P.W.11, it was suggested to the doctor the victim is

mentally retarded person is tutored on certain aspects there is a chance of

deposing the same and the doctor admits that P.W.11 denied the

suggestion on that the victim is not deaf and dumb.

13.P.W.5 is the interpreter who has interpreted the answers given

by the victim at the time of recording her statement by FIR police which

was signs and gestures. Even P.W.5 as interpreted while recording the

evidence of the victim in the court.

14.PW.6/victim who is examined through interpreter by putting

preliminary questions and after ascertaining that she is capable of

understanding the questions put to her and she gave rational answers.

PW.6/victim deposed that one day accused has taken her to top floor beat

her on cheek and removed clothes. Thereafter he made her sleep and he

slept on her. Then PW.3 questioned accused what he is doing. Then he

threatened her that he will cut her with blade then aunty/PW.3 has seen her

and informed to uncle and brought him to upstairs. Then accused has ran

7

away from that place by taking the clothes. Her brother Appanna called to

her mother over phone and informed her about her what has happened.

Then her mother and father came and taken her to Police Station, later

Police and aunty (Teacher) came to their house and has returned. She was

taken to Hospital by Police and mother and in the hospital they have put

her saline witness (she has shown her left hand that she was applied

saline). Manoj is called as ‘Poosalodu’. She went to Court and one person

has written something.

15.This Court observed the demeanor of the witness that she is

able to understand the questions put by this Court through the interpreter

and that the victim is answering slowly in low voice.

16.P.W.3 is the direct witness she stated that on 01.04.2015 at

about 4.00 pm, she went to upstairs to collect the clothes which are dried at

that time. She has seen the accused at intoxicated state with his bare body

committed rape on victim/P.W.6 removing her clothes then immediately she

went downstairs and informed her husband. L.w.4 and L.W.5 and took

them to upstairs by that time accused ran away after wearing his clothes.

So P.w.3 is direct eye witness who has seen the incident.

17.The learned defence counsel argued that when P.w.3 has seen

the incident she would have resisted the accused and tried to stop from

committing rape against the victim without going down and calling her

husband and another person.

18.In the cross examination of P.W.3 she stated that at that time

accused is in intoxicated state and she is not in a position to control him.

P.w.6./victim stated that when P.w.3 questioned the accused then he

threatened her that he will cut her with blade. Then further P.w.3 went

downstairs and brought uncle. So, the evidence of P.w.1 cannot be

8

doubted and it can be relied and the contention of the defence does not

hold.

19.P.W.2 who is the father of the victim he stated that about 3

years 6 months at about 5.30 pm, he returned to the house his wife/P.W.1

informed that the accused has committed rape on P.w.6 and his wife came

to know about the incident through P.w.3 who went upstairs to dry the

clothes. The mother of victim/ P.W.1 she stated that on 01.04.2015 in the

evening at about 4.45 pm, L.w.6 her sister’s son called over phone and

informed her that poosalodu/Manoj/accused/sunder committed rape on

P.w.6. Then P.w.3 informed that she has seen that the accused has taken

victim to the daba of the fourth floor. She further stated that P.w.3 went to

daba to get her clothes at that accused removed the clothes of the victim

and he also removed his clothes and beat the victim on both cheeks and

committed rape on her. Then she questioned her daughter through signs

and gestures when she informed her with signs that accused taken her to

the daba and beat her on the cheeks and removed her clothes and has

committed rape. She has handed over to police and that the victim has

taken to hospital for one month.

20.The defence put a suggestion that the mother and father of

P.W.1 and 2 that they do not know personally about the incident. It is true

that P.W.1 and 2 were not present at the time of incident. But P.W.1 came

to know about the incident through P.w.3 and when questioned her

daughter/P.W.6 she narrated the whole incident and P.w.1 inturn informed

to her husband P.W.2 then P.W.1 and 2 accompanied the victim reported to

the police.

21.P.W.7 who is one of the mediator did not support the

prosecution. P.W.8 is another mediator in whose presence the accused

9

was arrested and he confessed before them and at that time the accused is

holding his clothes in a carry bag Mos. 1 and 2 and handed over the same

to the police.

22.P.W.9 is the doctor who examined the accused Nakkala Sunder

@ Manoj and opined that there is nothing to suggest that he is not capable

of performing sexual intercourse or Act of Coitus and issued potency

certificate i.e., Ex.P4.

23.P.W.10 is the doctor who examined the victim on 02.04.2015 at

2.00 am, accompanied by P.Devamani WPC 619, A.S Nagar P.S. Per

speculum examination, external genitalia healthy, hymen not intact old

hymen tears at 6’o clock, no fresh tears, per vaginal examination introitus,

admitting one finger loose, after receipt of chemical analysis report the

doctor opined that there is a possibility of sexual intercourse cannot be

ruled out i.e., Ex.P7.

24.In the cross examination of the doctor it was elicited no injuries

of the body of the accused at the time of examining her, it has to be

observed that victim is a mentally challenged minor girl, she is not in the

position to resist the accused. So the question of injury does not arise.

The material collected on the body of the victim that is vaginal swab,

cervical swab, public hair, nail clippings, vaginal smear, cervical smear and

sent to RFSL for analysis. In the RFSL report blood and semen not

detected on items 1 to 6, foreign material not detected on items 3 and 4

that is hair clippings and nail clippings, spermatozoa not detected on items

5 and 6 i.e., vaginal smear, cervical smear. Nothing was brought on record

from RFSL report, it is not of much significance to the case of the

prosecution.

10

It is necessary to peruse Section 3 of POCSO Act -Penetrative Sexual assault

(a) he penetrates his penis, to any extent, into the vagine, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagine, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagine, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagine, anus, urethra of the child or makes the child to do so to such person or any other person.

25.Here is the victim is aged in between 17 to 18 years as per the

certificate of the doctor that she is mentally challenged girl as per Ex.P8.

On observation of demeanor the question put to her through the interpreter

about to understanding and she give answers in slow manner. The

parents of the victim/ P.W.1 and 2 and interpreter/ P.w.5 stated that she is

able to understand through signs and gestures and she used to answers in

signs and gestures but the victim speaking slowly and give answer while

deposing in the court. She has narrated about the incident that after

removing the clothes, the accused made to sleep and slept on her. So the

accused has committed rape on her.

26.The victim about the age is 17 to 18 years and at the same time

due to mental retardation she is not able to understand what happened to

her but she has deposed that accused made her to sleep and slept on her.

The question of consent does not arise when the victim is a child. Taking

advantage of the position of the victim that she is a child and also mentally

challenged girl and she is in more vulnerable situation has committed rape

11

on the victim. The testimony of the victim is credible and it was not

impeached. The testimony of the victim/ the prosecrutrix is corroborated by

the evidence of P.W.3 who is a direct witness and is also corroborated by

the medical evidence. The commission of the offence under section 376(2)

(l) was proved. As the offence under the main section i.e., sec.6 r/w 5(k) of

POCSO Act, 2012 is proved, the offence U/s 376(2)(l) is left open. Here

that the accused has committed aggravated penetrative sexual assault on

a minor girl who is mentally challenged person.

“ 6-penetrative sexual assault:-

Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

r/w 5(k) – Whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child; or

27.The prosecution has proved the guilt of the accused for the offense U/Section 6 r/w 5(k) of POCSO Act, 2012 beyond reasonable doubt.

POINT No.2:-

28.In the result, the accused found guilty for the offence punishable

U/Sec.6 r/w 5(k) of Protection of Children from Sexual Offences Act, 2012 , and accordingly he is convicted under Section 235(2) of Cr.P.C. Therefore the sentence for alternative charge under Section 376(2)(l) of IPC is not imposed as the accused is punished under Section 6 r/w 5(k) of POCSO Act.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court on this the 17th day of December, 2018.

Mahila Sessions Judge, Vijayawada. FAC/Spl Judge for Protection of Children from Sexual Offences­cum­Addl. MSJ, Vja.

12

Heard the accused on the quantum of sentence. The accused pleaded that he did not commit any offence and he has wife and children and they are dependent on him and he is sole bread winner to his family.

Taking into consideration the facts and circumstances of the case, the accused is not entitled to benefit of Probation of Offenders Act. There are no grounds to take lenient view in this case as the accused committed penetrative sexual assault against victim/PW.6 who is mentally challenged minor girl, the accused is sentenced to undergo Rigorous Imprisonment for a period of 10 years and also to pay fine of Rs.2,000/-(Rupees two thousand only), in default, accused shall undergo simple imprisonment for a period of one month for offence U/Sec.6 r/w 5(k) of Protection of Children from Sexual offences Act, 2012.

The remand period of the accused is given set off U/Sec.428 of

Cr.P.C.

The Property i.e. Mos 1 and 2 shall be destroyed after appeal time, after confirming that there is no appeal is pending.

The accused is informed that he can prefer an appeal against the judgment before the Hon’ble High Court of Judicature at Hyderabad for the

State of Telangana and for the State of Andhra Pradesh and he can approach the Legal Services Authority of the Hon’ble High Court or the District Legal

Services Authority, Krishna District for Legal Aid, if necessary.

Mahila Sessions Judge, Vijayawada. FAC/Spl Judge for Protection of Children from Sexual Offences­cum­Addl. MSJ, Vja.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: NIL

PW.1: N.Danamma PW.2: N.Chinna Rao @ Chinna PW.3: K.Nagamani PW.4:K.Kanaka Rao PW.5: D.Vasantha Kumari P.W.6: Victim girl 13

P.W.7:A.Durgamma P.W.8:G.Sowry P.W.9:Dr.B.Srinu Naik P.W.10:D.K.L.B.sailaja P.W11: Dr.V.Radhika Reddy P.W12: K.Poorna Kumari P.W13: B.Bala Murali Krishna(CI)

EXHIBITS MARKED FOR PROSECUTION:

Ex.P1: Signature of P.W.1 on statement. Ex.P2: Disclosure portion of seizure Ex P3: Age determination certificate by P.W.9 Ex P4: Potency certificate by P.W.9 Ex P5:Wound certificate by P.W.10 Ex P6: RFSL report Ex P7: Final opinion by P.W.10 Ex P8: Physically disability certificate by P.W.11 Ex P9: Identity card of P.W.6 by P.W.11. Ex P10:FIR Ex P11: Observation report Ex P12: Rough sketch Ex P13:Letter of advice Ex P14: Covering letter to Assistant Commissioner of police

EXHIBITS MARKED FOR DEFENCE: Nil.

MATERIAL OBJECTS MARKED:  Mo1: Pant Mo2:T­Shirt

Mahila Sessions Judge, Vijayawada. FAC/Spl Judge for Protection of Children from Sexual Offences­cum­Addl. MSJ, Vja.

1

IN THE COURT OF THE SESSIONS JUDGE, MAHILA COURT,

VIJAYAWADA

PRESENT:- Smt. M.BABITHA,

Sessions Judge, Mahila Court, Vijayawada.

Monday, this the 24th day of December, 2018.

Crl. Appeal No.186/2018

From what Court the AppealIn the Court of I-Addl. Chief is preferredMetropolitan Magistrate, Vijayawada.

Number of the Case in thatD.V.C.No.65/2015 Court

Description of the AppellantKotte Chandrasekhar, S/o Late Kotte Ramanjaneyulu, Hindu, Aged about 33 years, R/o D.No.4-941-5/2, Rajupeta, Beside National College, Machilipatnam, Krishna District.

Description of the 1) Kotte Lakshmi Durga, S/o Kotte Respondents.Chandra Sekhar, Hindu, Aged about 27 years, R/o D.No.61-20-16/1, V.M.Ranga Road, Alla Chella Rao Street,RamalingeswaraNagar, Vijayawada, Krishna District.

2) Kotte Ratna Kumari, W/o Ramanjaneyulu, Hindu, Aged about 56 years, R/o D.No.4-941-5/2, Rajupeta, Beside National College, Machilipatnam, Krishna District.

3) The state: Rep. By Addl. Public Prosecutor, MSJ Court, Vijayawada.

The Judgment passed by theIn the result, the petition is partly Lower Court to the Appellant.allowed by ordering return of stridhana amount of Rs.7,50,000/- and 5 sovereigns of gold to the petitioner by the R1 and further directedtopaymonthly maintenance of Rs.2,000/- to child born to the petitioner through the R1 from the date of the order, failing which the petitioner is at liberty to get the order enforced through court of law. The petition is partly allowed accordingly.

WhethertheAppealIn the result, criminal appeal is dismissed by confirming the order confirmed,reversedor dt.30-01-2018 passed in DVC modified by the Appellate No.65/2015 on the file of I-Addl. Chief 2

CourtMetropolitan Magistrate, Vijayawada.

Date of

NoticeRespondent Presen- Filingissued byordered to HearingJudgment tation the Courtappear 14-05-1814-05-1803-08-1831-08-1812.12.1824.12.18

This Appeal is coming before me for hearing on 12.12.2018 in the presence of Sri P. Mani Prasad, Advocates for appellant and of Sri M.V.Rama Rao, Advocate for respondent and upon perusing the grounds of Appeal and other connected material papers on record and having stood over the matter for consideration till this day, this Court delivered the following:-

J U D G M E N T

This Criminal Appeal is filed under Section 29 of protection of DVC by the appellant against the conviction and sentence passed in

D.V.C.No.65/2015 dt.30.01.2018 on the file of I-Addl. Chief Metropolitan

Magistrate, Vijayawada.

2.The brief averments of petition this is a complaint-petition filed by the petitioner against the Respondents under section 12 of Protection of Women from Domestic Violence Act, 2005.

3. The Petitioner is the wife of the Respondent No.1 and their marriage took place on 21.12.2012 according to Hindu Dharma Sastras and caste usage at her parents house Ramalingeswara Nagar,

Vijayawada. At the time of the marriage her parents gave Rs.7,50,000/- as pusupukumkuma and given 5 sovereigns of gold to the R1.

Immediately after the marriage she joined with R1 at her matrimonial house, Vijayawada out of the lawful wedlock she begotten one male child on 16.10.2013 by name Suraj. The R1 have not any interest towards her and R2 harassed her to bring additional dowry amount and sent her to her parents house. After giving birth to the male child on 20.2.2014 she went to her matrimonial house along with her new born 3 baby, even R1 also demanded to bring an amount of Rs.1,00,000/- need not in addition to sare-samanu but not fulfill the demands of the respondent and made quarrel with her without any cause and turned on backside the R2 instructed to caught hold her neck and press and necked out from the house locked. There is no other go, she went to her parents house. Thereafter the petitioner and her parents made mediations dated 17.01.2015 expressed their inability to pay one lakh at a time and could be payable by installments even then they abused in the filthy language and trenched her not to come to their matrimonial house without fulfill their illegal demand, she has no source to maintain herself and her son depend on the mercy of the aged parents and have no safety to her life from the respondents and require shelter to her and her son. R1 got properties and getting monthly income of Rs.50,000/- and maintained interest business in and around Vijayawada and earn

Rs.1 lakh per month. The petitioner further submitted that R1 filed a divorce petition in OP No.190/2016 on the file of Family court,

Vijayawada and obtained exparte decree with a fraudulent manner. I further submit that after her marriage R1 addicted to vices like drinking alcohol and gambling and came to the house in late hours in a drunken condition. The petitioner further submitted that on 28.8.2014 when the respondents tries to kill her, she observed the acts and attitudes to them, due to that fear she took some amount from the neighbours and reached her parents house along with her son. She revealed everything to her parents, then her parents some elder went to the respondents’ house and advised to amend their behaviour and co-operate to lead peaceful marital life, but they abused the elders in filthy language and warned that she had to die or she has to give divorce failing which they would kill her. Hence the complaint- petition.

4. Respondents filed counter. The averments of the counter in 4 precise are as follows:

All the allegations made in the petition are all false and they are invented only for the purpose of petition and therefore the petition is liable to be dismissed. The respondent further submitted that the petitioner is so adamant and arrogant person, ever since from joining this respondent the petitioner did not care this respondent as she is graduate and R1 studied only 10th class. She also demanded to shift the family to her parents house in Vijayawada as Machilipatnam is not suitable to her. She also threatened him that he did not agree for the said proposal, she would not lead the kapuram with him. R1 for several times tried to mend her attitude, but the petitioner did not heed the words of the R1. R1 further submitted that after coming to know about the birth of the child, R1 went to his in-laws house then the petitioner along with her family members bet him and abused him in filthy language. The petitioner openly proclaimed that unless R1 has to put the 430 sq. yards of site along with the building therein stands in the name of R2 and also put separate kapuram in Vijayawada, if R1 not done the same the petitioner openly proclaimed that she would not lead the kapuram, thereby the petitioner threatened him in case R1 come to her she would commit suicide. Then R1 is ready to take back the petitioner along with the child into his fold as and when she returned to the family house. R1 also filed P.L.C.727/2014 on the file of the District

Legal Service Authority, Krishna, Machilipatnam requesting the petitioner to come and join him. Having failed in all the attempts made by the R1 as well as through the elders, the petitioner did not turn up.

Hence R1 is constrained to file HMOP No.37/15 for dissolution of the marriage in between the petitioner and the respondent that took place on 21.12.2012 on the ground of desertion and cruelty. After filing of the

HMOP, the petitioner along with her henchmen and the father-in- 5 law of R1 high handedly came and trespassed into the house of respondent and tried to kidnap this respondent. Hence the Respondents prayed the court to dismiss the Petition.

5. On behalf of the petitioner pw1 and pw2 examined and Ex.P1 and P2 marked and on behalf of respondent none were examined.

6. After hearing both sides.

7. Aggrieved by the judgment of the trial court the appellant/ respondent preferred the appeal on the following grounds

i)The order of the trial court is not maintainable in the eye of law and is completely against to the principles of natural justice. The trial court did not even follow the procedure which was available.

ii)The order of the learned trial court is against law and weight of evidence and probabilities of case.

iii)The order of the trial court is based on sheer presumptions and surmises and not according to the settled principles of law.

iv) The learned trial court while passing the order jumped into unnecessary conclusions without considering the settled principles of law, procedure and evidence.

v)The learned trial court unilaterally without any reasoning or sound approach passed the orders against the appellant though the petitioner failed to prove the allegations made against the respondents and as such the order itself suffers from irregularities and illegalities.

vi)The impugned order is erroneous, illegal and void, and it is against law, facts and circumstances of the case as such fit to be set aside.

vii)That the learned trial court relied more on assumptions and presumption, surmises, conjunctures which are not relevant to circumstances of the case.

viii)That the learned trial court ought to have considered the valid contents of the counter filed by the Appellants.

6 ix)That the learned trial court ought to have given valid reasons that the 1st respondent failed to establish that she is unable to maintain herself.

x)The order of the learned trial court in point No.3 which is unchallenged evidence by the Appellant hence the order is not at all valid and unjustice to the Appellant without giving any reasonable opportunity to prove his contention, bonafide and his innocence.

xi)The trial court failed to observe that the father of the 1st

Respondent, who is working as lorry driver is having capacity to present huge sum to the appellant towards dowry and there is any possibility to him.

xii) The trial court failed to observe if the trial court gave any reasonable opportunity to him in adducing evidence on his behalf, the truth will be elicited and to decide the case facts.

xiii)The trial court should not implement the hard and fast rule in this order without giving the opportunity to the Appellant to come into the witness box and adduce his evidence to disprove the allegations made by the 1st Respondent about the alleged sridhana.

8) Heard Both sides.

9) Point for consideration:

a) Whether the petitioner is entitled to protection order against the respondents?

b) Whether the petitioner is entitled to residence order from Respondents?

c) Whether the petitioner is entitled to Stridhana amount of Rs.7,50,000/- along with 5 sovereigns of gold from the respondents?

d) Whether the petitioner is entitled to monthly maintenance of Rs.20,000/- to the petitioner and her child from R1?

e) Whether the petitioner is entitled to compensation of Rs.2,00,000/- from the respondents?

10. It is an admitted fact that petitioner and R1 are wife and 7 husband and they were blessed with a son. There is no act of domestic violence. Petitioner is residing at Vijayawada in view of employment by looking after welfare of the child.

11. Except evidence of PW.1 & PW.2 /father of PW.1 there is no evidence to show that violence is committed against PW.1. And that petitioner is living at her maternal house. she want to join with R1 at

Machilipatnam at her choice as such she is not entitled to residence/protection order.

12. Admittedly as seen from the evidence of PW.1 and her father/PW.2 that an amount of Rs.7,50,000/- and 5 sovereigns of gold was given as sridhana and to the petitioner for which the respondent failed to examine herself nor any other witnesses on his behalf. As such the petitioner is entitled to return of sridhana amount of Rs.7,50,000/- and 5 sovereigns of gold from the respondents.

13. Considering that petitioner is residing at Vijayawada along with her parents and working at Vijayawada, hence petitioner is not entitled to maintenance and the son of petitioner is entitled to maintenance as it is bounden duty of father to maintain their son.

Therefore monthly maintenance of Rs.2,000/- is ordered to be paid to petitioner towards the maintenance of the child.

14. This court holds good the order of trial court as to not granting compensation of Rs.2,00,000/- as there is no reason in specific to claim compensation or any evidence adduced in this regard.

15. So the trial court order as to granting of maintenance of

Rs.2,000/- to son of petitioner and refund of sridhana amount of

Rs.7,50,000/- and 5 sovereigns of gold to the petitioner by R1 is sustainable under law and warrants no interference.

16. In the result, criminal appeal is dismissed by confirming the order dt.30-01-2018 passed in DVC No.65/2015 on the file of I-Addl.

8

Chief Metropolitan Magistrate, Vijayawada.

Typed to my dictation by the Typist, corrected and pronounced by me in the open court this the 24th day of December, 2018.

Sd/-M.Babitha,

Mahila Sessions Judge, Vijayawada.

IN THE COURT OF SESSIONS JUDGE, MAHILA COURT,

VIJAYAWADA.

PRESENT: - Smt. M.Babitha,

SESSIONS JUDGE, MAHILA COURT, VIJAYAWADA.

Monday, this the 31st day of December, 2018.

SESSIONS CASE No.84/2017.

(P.R.C.No.13 of 2017 on the file of the court of I-Metropolitan

Magistrate, Vijayawada).

1.Name of the accusedSunku Siva @ Sivaiah, S/o.Chinnabba, 38 years, Kapu, (Balija Nayudu), R/o.3/145, Nindra Village, Chittur District.

2. ChargesU/s.302 & 498-A IPC.

3. Finding of the Judge Found not guilty.

4. Sentence or order In the result, the accused is found not guilty for the offence punishable under Sections 302 and 498-A IPC and accordingly he is acquitted under Sec.235(1) of Cr.P.C. The M.Os.1 to 4 shall be destroyed after appeal time is over after confirming that no appeal is pending. The bail bonds of accused shall stands cancelled.

5.Prosecution Sri G. Daiva Prasad, Addl. Public Prosecutor, conducted By:Sessions Judge’s Court, Vijayawada.

6.Name of the Sri D. Anjaneya Prasad, Advocate. Advocate for accused.

7. Cr.No. & Name ofCr.No.344/2016 of Penamaluru Police Station, the Police station.Vijayawada city.

8. PRC No. & Name of I-Metropolitan Magistrate, Vijayawada in the Committal CourtPRC.No.13/2017.

J U D G M E N T

1. The Inspector of Police, Penamaluru Police Station, Vijayawada

City, filed charge sheet against the accused for the offence under

Sections 302 and 498-A IPC in Crime No.344/2016 of Penamaluru Police

Station.

2. The brief facts of the prosecution case is that one Sunku Usha is the deceased. PW.1 is mother of the deceased. PW.1 is residing in the house of Sripati Subrahmanyam. PW.1 is attending to the mentally derailed person Krishna Babu, brother of Sripati Subrahmanyam. PW.1 has two daughters. Saileela is the eldest daughter and she was 2 married and residing in Kanuru village. The deceased Usha was married to the accused, who is resident of Nindra Village and their marriage is love marriage and the same was performed about 17 years back. They were blessed with two sons. The accused is auto driver.

The accused suspected the fidelity of his wife Usha and subjecting her to cruelty both mentally and physically. Due to unbearable cruelty of the accused, the deceased came down to Kanuru with her two children and residing in Kanuru. The accused used to come to Kanuru and subject her to cruelty in drunken state. About 4 days back the accused came down to Kanuru and stayed in Kanuru. On 19.6.2016 the youngest son of deceased Dhanush came to PW.1 at 3.00 hours and shouted that the accused hacked with an axe on his mother. PW.1 immediately rushed to the house of her daughter and she was with head injury and it was severely bleeding and she is in pool of blood.

Due to suspicion over the character of the deceased, the accused attempted to kill her with an axe when all the persons were sleeping and it is his pre-plan. The accused axed the deceased on her head, right ear, right side of head and she is in unconscious state. PW.1 informed the occurrence to her son-in-law Mohan Rao and he rushed there and removed the injured in 108 ambulance and admitted her in

Government General Hospital, Vijayawada. While undergoing treatment the injured succumbed to injuries at 2.20 p.m. on 23.6.2016 in Government General Hospital, Vijayawada.

Basing on the report of PW.1, PW.12 registered a case in

Cr.No.344/2016 under Sec.307 IPC and investigated into. During the course of investigation, PW.12 visited the scene of offence, inspected the scene, prepared rough sketch, got an observation report of the scene of offence drafted by mediators and examined the witnesses and recorded their statements. After receipt of death intimation from the

Government Hospital, Vijayawada, PW.12 altered section of law from 3 498-A and 307 to Section 498-A and 302 IPC and submitted express FIR to all the concerned.

PW.13 took up further investigation and verified the investigation done by PW.12, proceeded to Government General Hospital,

Vijayawada and held inquest over the dead body of the deceased in the presence of panchayatdars on 24.6.2016 at 9.00 hours, examined the witnesses and recorded their statements and later the dead body was sent for postmortem examination to the Government General

Hospital, Vijayawada.

During the course of investigation, PW.13 arrested the accused on 27.6.2016 at 14.00 hours at Tank, Kanuru village outskirts,

Penamaluru Mandal in the presence of mediators and got his confession about the commission of offence recorded by the mediators. In pursuance of confession of accused, PW.13 recovered the blood stained lungi and crime weapon when produced by the accused from the shed of Gutta Prasad in the presence of mediators under the cover of mahazar on 27.6.2016 at 14.00 hours to 15.30 hours and later send the accused to judicial remand. PW.13 forwarded the material objects to the RFSL, Vijayawada under the letter of advice.

PW.11 conducted postmortem over the dead body of deceased and issued PM Report by opining that the cause of death of the deceased was due to head injury. PW.13 got recorded Sec.164 Cr.P.C. statements of P.Ws.1 to 3 through IV-Addl. Chief Metropolitan Magistrate,

Vijayawada. After completion of investigation, PW.13 filed charge sheet against the accused for the offence under Sections 302 and 498-A IPC.

3.The I-Metropolitan Magistrate, Vijayawada has taken the cognizance of the offence under Sections 302 and 498-A of IPC and furnished copies of documents to the accused as contemplated U/s.207

Cr.P.C. and committed the case to the Metropolitan Sessions Judge,

Vijayawada by following the procedure laid down U/s.209 Cr.P.C.

4

4.The Metropolitan Sessions Judge, Vijayawada after taking the case on file, made over the same to this court for disposal according to law. After appearance of accused and on hearing, charges u/s.302 and 498-A IPC are framed against the accused and read over the said charge and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

5.In order to prove its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P1 to P19 and M.Os.1 to 4 and got marked Ex.D1 through the evidence of PW.4.

6. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. for the incriminating material found against him, for which he denied to be false and pleaded innocence and reported no defence evidence.

7. Heard both sides.

8. Now, the points that arise for consideration are:

(i)Whether the prosecution has proved the guilt of accused for the offence punishable under Sections 302 and 498-A IPC beyond reasonable doubt?

(ii)To what relief?

POINT No.(i):-

9. The case of the prosecution is that the accused has subjected the deceased to cruelty both physically and mentally by suspecting her fidelity and on 19.6.2016 the accused hacked with an axe and kill the deceased.

10.PW.1 is the mother of the deceased and who has reported to the police about the incident. PW.2 is one of the sons of the deceased. PW.3 is another son of the deceased who stated that his father and mother disputed with each other by suspecting her fidelity.

PW.6 and PW.7 are the neighbours did not support the case of the prosecution and they resiled from their earlier statements and their evidence is not useful to the case of the prosecution.

5

11.PW.11 is the Doctor who conducted postmortem and found the following injuries.

1).One cut laceration of left ear pinna measuring 2 x 1 cm present in the upper part red in colour.

2).Sutured wounds 5 in number present on the face with intact sutures measuring 3 cms, 2 cms and 1.5 cms.

3).Scalp oedematoes with contusion at the frontal and bitemporal areas. Temporalis, muscles, contusion on both sides.

4).Comminuted fracture of frontal bone present on left side with extension towards right side into anterior cranial fossa and up to middle cranial fossa.

5).Roof of the both the orbits crushed with presence of contusion of frontal lobes.

6).Sub dural haemorrhage present at the left temporo paerital area.

The cause of the death is due to head injury.

12.PW.8 is the inquestdar. They opined that the accused due to suspicion hacked the deceased with axe and thereby killed her. So basing on the opinion of postmortem and inquest the death of the deceased is homicidal but not suicidal or accidental.

13.PW.10 is the VRO in whose presence the accused was arrested and confessed his guilt. Thereafter he has shown the place where the axe and lungi kept in a cover that they accompany along with him. At the instance of accused one lungi and axe in a cover which was kept in the corner of asbestos shed were recovered. The admissible portion in Ex.P1 “NENU DHACHINA GODDALI, LUNGI UNNA

COVERU MEEKU AA PRADESAMLO CHUPINCHAGALAVADANU” was marked and M.Os.3 and 4 were recovered.

14.PW.5 is the brother-in-law of the deceased. He deposed that the accused occasionally used to visit to the house of PW.1. Both 6 of them disputed with each other. About 2 years back he came to know that the accused disputed with the deceased and he stabbed with an axe on her head and thereby she died. He came to know through the same through the other persons.

15.PW.4 is the sister of the deceased. She has narrated the incident at Nindra where the accused and deceased used to reside and about the harassment made by him and reporting to the police over there and even after she calceleated there is no change in the attitude of the accused. The same was proved to be omission and there were certain improvements in the evidence of PW.4. So the version of P.Ws.4 and 5 is not useful to the case of the prosecution.

When all the prosecution witnesses resiled from their earlier statements and the evidence of P.Ws.4 and 5 is not useful to the case of the prosecution.

16.The material objects recovered at the scene of offence and the clothes of the deceased including the axe and lungi which were recovered at the instance of accused were sent to RFSL and nothing was traced with regard to the blood group. So even chemical analysis report does not contribute to the investigation. The prosecution has miserably failed to prove the guilt of the accused for the offence punishable under Sections 302 and 498-A IPC beyond reasonable doubt.

POINT NO.2:-

17.In the result, the accused is found not guilty for the offence punishable under Sections 302 and 498-A IPC and accordingly he is acquitted under Section 235(1) Cr.P.C. M.Os.1 to 4 shall be destroyed after appeal time is over after confirming that no appeal is pending.

The bail bonds of accused shall stands cancelled.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court this the 31st day of December,

2018.

7

Sd/-M.Babitha,

Mahila Sessions Judge, Vijayawada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PROSECUTION:

PW.1: P.Ganga Bhavani. PW.2: S.Balu Mahendra. PW.3: S.Dhanush. PW.4: P.Saileela. PW.5: P.Mohan Rao. PW.6: V.Siva Sankara Rao. PW.7: V.Venkateswara Rao. PW.8: Cheeli Srinivasa Rao. PW.9: U.Venkata Rumesh. PW.10: S.Satyanarayana. PW.11: Dr.G.Jhansi Lakshmi. PW.12: M.Ashok. PW.13: K.Dhamodhar.

WITNESSES EXAMINED FOR DEFENCE: -NONE-

EXHIBITS MARKED FOR PROSECUTION:

Ex.P.1: Signature of PW.1 on report. Ex.P.2: Sec.161 Cr.P.C. statement of PW.1. Ex.P.3: Sec.161 Cr.P.C. statement of PW.2. Ex.P.4: Sec.161 Cr.P.C. statement of PW.3. Ex.P.5: Sec.161 Cr.P.C. statement of PW.6. Ex.P.6: Sec.161 Cr.P.C. statement of PW.7. Ex.P.7: Inquest report. Ex.P.8: Scene observation report.

Ex.P.9: Admissible portion of confession in mediators report. Ex.P.10: Mediators report. Ex.P.11: Postmortem report. Ex.P.12: Report of PW.1. Ex.P.13: FIR. Ex.P.14: Rough sketch of scene of offence. Ex.P.15: 5 photographs with CD. Ex.P.16: Death intimation. Ex.P.17: Altered FIR. Ex.P.18: Letter of advice. Ex.P.19: RFSL report.

EXHIBITS MARKED FOR DEFENCE:

Ex.D.1: Part of Sec.161 Cr.P.C. statement of PW.4.

MATERIAL OBJECTS MARKED:

MO.1: Chapa.

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MO.2: Dindu. MO.3: Goddali/axe. MO.4: Lungi.

Sd/-M.Babitha,

Mahila Sessions Judge, Vijayawada.