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SC No.150 of 2016
IN THE COURT OF THE JUDGE, SPECIAL FAST TRACK COURT FOR
EXPEDITIOUS DISPOSAL OF RAPE AND POCSO ACT CASES AT
NALGONDA
Present: Smt.M.Bhavani, III Addl. District & Sessions Judge, Nalgonda FAC: Judge, Special Fast Track Court for expeditious disposal of Rape and POCSO Act Cases, Nalgonda
Dated this the 6th day of April 2021
SC No. 150 of 2016
(Cr.No. 150 of 2015 of Chandampet P.S.)
Complainant: Circle Inspector of Police, Dindi Circle
Name of accused: Chirra Anjaiah S/o Lingaiah, age: 19 years, caste: ST Chenchu, occ: Coolie R/o Chenchu colony, H/o Chitriyala
(v), Chandampet Mandal
Offences charged: Secs.417, 376(2)(i) IPC and Sec.5(j)
(ii) r/w. 6 of The Protection of Children from Sexual Offences Act, 2012
Plea of the accused: Pleaded not guilty
Finding of the Court: Found not guilty
Sentence/Order: The accused is found not guilty for the offences under Secs.417, 376(2)(i) IPC and Sec.5(j)(ii) r/w. 6 of The Protection of Children from Sexual Offences Act, 2012 and is acquitted under Sec.235(1) Cr.P.C. Bail bonds of the accused if any shall stands cancelled after lapse of appeal time. No compensation is awarded in view of the testimony given by the victim and as it is reported that the process for compensation before the authorities concerned (DWO) is pending.
This Sessions Case is coming on 24.3.2021 for hearing in the presence of Sri G.Mohan, Advocate for the accused and Sri 2
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N.Gopalakrishna, Special Public Prosecutor for the State and after the matter having been stood over for consideration till this day, this Court made the following:
JUDGMENT
The Inspector of Police, Dindi Circle laid this case against the accused for the offence under Secs.417, 376 IPC and Sec.4 of The
Protection of Children from Sexual Offences Act, 2012.
2.The matrix of the prosecution case is:
2(i).The parents of the victim died due to illness, leaving behind victim and her younger sister Anusha. They were staying along with her maternal aunt. The victim was pursuing 10th class at K.G.B.V.
School, Chandampet. When the victim was coming to the village during holidays, the accused developed acquaintance with her, followed her under the pretext of love and marriage and fulfilled his sexual desire. The victim became pregnant and when her maternal aunt observed the baby bump and made enquiries, the victim revealed the entire matter. The relatives of the victim went to the house of the accused and questioned about his behaviour and then he gave evasive reply. On such reply from the accused, the maternal aunt went to the police station and gave report. On such report, the S.I. of Police,
Chandampet P.S. registered a case and made a requisition to the Lady
Medical officer, District Headquarters Hospital, Nalgonda and the victim was sent to her with a woman Home Guard for medical examination. The offence was grave in nature and so, the Inspector of 3
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Police, Dindi Circle took up investigation. As a part of investigation, the
Inspector of Police secured the presence of I.C.D.S. Supervisor, Woman
Home Guard 757, Chandampet and proceeded to the house of the complainant. He secured the presence of the complainant and examined the victim in their presence. Her statement was recorded and from there proceeded to the house of the accused which is the alleged scene of offence where the victim was sexually exploited by the accused. Two panchas were secured near by the scene of offence and it was observed in their presence. A panchanama and rough sketch were prepared. He also collected the Bonafide Certificate of the victim from the Special Officer, K.G.B.V., Chandampet and it reflected that the victim was born on 4.9.2000. The victim was aged about 15 years 4 months and odd as on the date of report. On 21.11.2015 at 700 A.M.
the Inspector of Police received credible information about the accused and he directed the S.I. of Police to produce the accused before him.
Accordingly, the S.I. of Police produced the accused before the
Inspector of Police, Dindi Circle and on interrogation the accused admitted his guilt. He was referred to the Medical Officer for potency test. On 29.11.2015 the Inspector of Police prepared a letter of advice and forwarded two vaginal smears and slides which were collected by the Medical Officer from the victim to the Forensic Science Laboratory,
Hyderabad, for chemical analysis. Basing on the F.S.L. report, the
Medical officer gave her final opinion stating that semen and 4
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spermatozoa are not detected on slides and smears. It was also opined that the sexual intercourse cannot be denied.
2(ii) On 13.2.2016 a letter was prepared and submitted before the
Hon’ble I Addl. District Judge, Nalgonda to send the baby, victim and
the accused to the Forensic Science Laboratory, Hyderabad for D.N.A.
test to prove the paternity of the infant baby. Said requisition was allowed and the accused, victim and the female infant baby were sent to the F.S.L., Hyderabad for collecting blood samples for D.N.A. test.
The F.S.L., Hyderabad gave its opinion. By the time, the charge sheet was filed the report was pending. After completion of investigation laid this case. Hence the charge.
3.This case was taken cognizance against the accused for the offences under Secs.417, 376 IPC and Sec.4 of The Protection of
Children from Sexual Offences Act, 2012.
4.On appearance of the accused, copies of documents were furnished to him as contemplated under Sec.207 Cr.P.C.
5.The accused was examined under Sec.228(1)(b) Cr.P.C., charges for the offence under Secs.417, 376(2)(i) IPC and Sec.5(j)(ii) r/w. 6 of
The Protection of Children from Sexual Offences Act, 2012 against the accused were framed and read over to him in Telugu, for which he pleaded not guilty and claimed to be tried.
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6.During the course of trial, the prosecution got examined twelve witnesses and exhibited sixteen documents.
7. After closure of the prosecution evidence, the accused was examined under Sec.313 Cr.P.C. with regard to the incriminating evidence appearing against him in the prosecution case, for which he stated it to be false and reported no evidence.
8.Heard both sides arguments.
9.The learned Special Public Prosecutor reported before the Court to dispose the matter on merits.
10.The learned counsel for the accused reported that the oral and medical evidence produced by the prosecution are against their case, the latches on the part of the Investigation Officer extends benefit of doubt to the accused and prayed the Court to acquit him.
11.Basing on the above submissions, the points that arise for consideration are:
1. Whether the prosecution has established that victim (PW2) was aged less than 18 years as on date of alleged offence?
2. Whether the prosecution has established that accused had cheated the victim by making false promise of marriage and did he sexually exploit her?
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3. Whether the prosecution has established beyond reasonable doubt that accused had committed rape and aggravated penetrative sexual assault against a girl below 16 years resulting in pregnancy?
POINT No.1:
12.The prosecution got examined PW8M.Neelambari the Special officer, K.G.B.V. and exhibited Ex.P8 Bonafide Certificate. It reflects the date of birth of the victim as 4.9.2000. The alleged offence took place one year prior to 19.11.2015 which means victim was aged 15 years 4 months and odd. Sec.2(d) of The POCSO Act defines a child as a person below 18 years of age. Thus the victim is a child. Point answered accordingly.
POINT NO.2:
13.The word cheating is defined under Sec.415 IPC. It reads as:
Cheating: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
A cursory perusal of the above provision would make it clear that there are atleast three essential ingredients constituting an offence of cheating which should be made out from the materials available on record. They are as follows:
(1) Deception of any person; 7
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(2) Fraudulently or dishonestly inducing that person (I) to deliver any property to any person or;
(ii) to consent that any person shall retain any property, or and (3) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.”
14.In the instant case, the maternal aunt of victim has set criminal law into motion by mentioning in the report that accused followed victim under the pretext of love, promised to marry her and sexually exploited her several times at his house. The victim became pregnant and later accused denied his involvement and also refused to marry her.
The said report was preferred when victim was about 28 weeks pregnant.
15.A glance at the evidence of PW1M.Edamma shows that victim is an orphan and she was niece of PW1. She was studying at K.G.B.V.,
Chandampet and on one fine day she grew suspicious on seeing the stomach of the victim and when questioned she could not get an appropriate reply. Then matter was placed before elders who drafted the report. She expressed her ignorance about the contents and stated that she was not examined by police. She resiled from her statement and deposed against prosecution case.
16.Though in the report, the name of the accused was mentioned specifically none of the prosecution witnesses including the victim 8
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testified that accused had cheated the victim by fraudulent and deceitful words, thereby compelling her to do an act which causes or is likely to cause damage or harm to that person in body; mind etc. Thus, it is opined that the essential ingredients as required under Sec. 415 IPC are not made out against the accused. Point answered accordingly.
POINT NO.3:
17.The prosecution story unfolds as, the victim was studying at
K.G.B.V., Chandampet and during holidays when she came to village, the accused followed her under the pretext of love and marriage, sexually exploited her at his house and as a result she became pregnant.
Noticing that victim was with a baby bump the complainant (PW1) caused enquiries and the victim revealed the alleged incidents.
18.The accused conveniently denied his involvement and left with no option the report was preferred and matter was investigated and police laid charge sheet.
19.The learned Special Public Prosecutor urged before the Court that accused had committed the offence and prayed the Court to punish accused according to law.
20.On the other hand, the learned counsel for accused stated that neither the oral nor medical evidence supports prosecution case and 9
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drew the attention of this Court to evidence of Investigation Officer and prayed to extend benefit of doubt and to acquit the accused.
21.In the backdrop of said contentions now the point that needs to be answered is if accused had perpetrated aggravated penetrative sexual assault and rape against a girl below 16 years of age resulting in pregnancy.
22.Admittedly, the victim was studying at K.G.B.V., Chandampet and is an orphan. By the time the report was preferred and victim was referred to Medical Officer, she was 28 weeks pregnant and the expected date of delivery as per Ex.P13 (final opinion) of Medical officer reveals as 8.2.2016.
23.The report was given on 19.11.2015 and column No.8 of F.I.R.
depicts as “No delay”. The mention of these words in F.I.R. clearly reflect the nonapplication of reason and indifferent attitude of the
Officer who received the report which contains a grave offence perpetrated against a 14 year old girl (an orphan) and his approach shows that the case was registered in a mechanical manner.
24.Here, it is apt to recapitulate the statement of objects and reasons for enactment of The POCSO Act 2012 and it reads as:
“The Protection of Children from Sexual Offences Act 2012 (the said Act) has been enacted to protect children from offences of sexual assault, sexual harassment and pornography and provide for 10
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establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
2. The said Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
3. However, in the recent past incidences of child sexual abuse cases demonstrating the inhumane mind set of the abusers, who have been barbaric in their approach towards young victims, is rising in the country. Children are becoming easy prey because of their tender age, physical vulnerabilities and inexperience of life and society. The unequal balance of power leading to the gruesome act may also detriment the mind of the child to believe that might is right and reported studies establish that children who have been victims of sexual violence in their childhood become more abusive later in their life.
In the above backdrop, as there is a strong need to take stringent measures to deter the rising trend of child sex abuse in the country, the proposed amendments to the said Act make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child.
An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
Whereas clause(3) of Article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;
And whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected 11
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and respected by every person by all means and through all stages of a judicial process involving the child;
And whereas it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;”
25.The best interest of child and allround development are of prime importance under this Act. Soon after receipt of occurrence of offence or if any one has knowledge that such an offence like sexual assault; sexual exploitation etc. of a child has been committed such information must be given to SJPU or local police as contemplated under Sec. 19 of the Act. Failure to do so, would invite legal consequences (S/21).
26.In the instant case, on report of maternal aunt of victim (PW1) the case was registered by the S.I. of Police, he sent the victim to the
Medical Officer through a Woman Home Guard and later as the offence was grave, the file was handed over to the Inspector of Police, Dindi
Circle. He took up investigation, proceeded to Chenchu colony, along with Woman Home Guard 757 and Smt.K.Ramanna(PW7). The statement of victim was recorded in their presence. Now the said
I.C.D.S. Supervisor (PW7) in whose presence victim gave her statement voluntarily testified before the Court as under:
“As the witness was working as Supervisor, ICDS, Chandampet at the relevant point of time and as she intended to voluntarily reveal certain facts, the Court is recording the below:
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There was a Mini Anganwadi Centre, Chenchu colony, Chitriyala.
One Anjamma was working as ICDS Teacher in the said Mini
Anganwadi Centre. Five to Six days prior to 20.11.2015 Anjamma came to the Project Office, Deverakonda and informed that the victim who was studying in Kasturba Gandhi Balika Vidyalam and resident of
Chenchu colony, was committed rape by the accused herein and as a result she became pregnant. The said Anjamma is the relative of victim.
She further added that the accused refused to marry the victim. On such information, the CDPO instructed me to visit Chenchu colony and to meet the victim. I went to the Chenchu colony twice. On one occasion the victim was not available. On the second occasion, the victim told me that the accused sexually exploited her whenever she came to the village during holidays and she became pregnant and that the accused refused to marry her. I informed the same to the Sub
Inspector of Police, Chandampet. He told me that a case can be registered as the offence was perpetrated against a minor girl. On 20.11.2015 I went to the said place along with the Inspector of Police.
The above evidence which was voluntarily given by the witness shall not be treated as part of the crossexamination.”
27.So, by the time statement of victim was recorded PW7 (ICDS,
Supervisor) and ICDS Teacher had knowledge about the alleged 13
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offence, but till the date victim was examined/report was preferred, it was not reported as stipulated under Sec.19 of The Act.
28.The victim was a 15 years child and was with 28 weeks pregnancy. In such a case, the Investigation Officer is expected to pin down the culprit by ascertaining the presence of victim at her school or at her village. The contents of report read that accused was perpetrating the offence whenever the victim was coming to village during holidays that too at his house. But it is interesting to note that the victim gave her testimony as:
“The alleged offence took place when I was studying 8th class. On one day I told PW1 that accused came to our house at Chitriyala and was talking to me. He was going away. On one day when I was in the hostel, it was dark and I did not see anything. I do not know what happened. I begot a female child 6 years ago. Presently she is in my custody, studying at Hyderabad.”
This evidence prima facie reflects that some incident took place when victim was in the hostel and when it was dark.
29.The evidence of PW3 (Jella Anjamma) reads as:
“The alleged offence took place six years ago. The victim was studying at Mini Gurukul. The alleged offence took place in the school of the victim. The victim became pregnant and she came to the village.
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The victim gave birth to a girl child. We performed the marriage of the victim with my brother. I do not know who is the biological father of the female child. I accompanied the victim and the female child when they went to the FSL for DNA profiling. I do not know the other facts of this case.”
30.In this case what assumes significance is the Investigation Officer needs to investigate at what point of time the victim was at K.G.B.V.
and when she came to her village. That can be easily made out from the mention of date made by Medical Officer with regard to expected date of delivery and by going through the attendance registers; entry and exit registers maintained by K.G.B.V., Chandampet.
31.It is appropriate to look into the answers given by Special Officer,
K.G.B.V., Chandampet when the Court questioned her invoking Sec.165 of Evidence Act, they are:
Q. In which class did the victim join KGBV, Chandampet?
Ans: 6th standard.
Q. What is your responsibility as a Special officer?
Ans: The School is a residential school from 6th class to 10th class. My responsibility was to act as Principal cum Warden.
Q. Are you expected to stay in the hostel?
Ans: There are guidelines from Sarva Shiksha Abhiyan that the Principal cum
Warden can leave the premises after office hours and perform the duty of
Warden for a day in a week. The guidelines state that a Teacher can be 15
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appointed on rotation basis to be present in the premises during nights for the safety and security of the girl children.
Q. Do you maintain any Registers which reflect the allocation of night duties to the Teachers?
Ans: Yes. Night Duty Register.
Q. How often do you check night duty register?
Ans: Daily
Q. How often do you visit the dormitory?
Ans: Daily
Q. How often were you interacting with the students of each class?
Ans: Daily during lunch time.
Q. What was the victim’s name?
Ans: Jella Baby
Q. Are you aware about the family background of this girl?
Ans: Yes. She was an orphan.
Q. Who was the guardians?
Ans: Junior paternal uncle and maternal aunt.
Q. How often were the guardians visiting the victim?
Ans: Monthly once.
Q. Were you checking with the girls if they were using the sanitary pads that were part of the Health kit supplied?
Ans: Yes. A Register named as Menses Register was maintained by ANM who was attached to the School. Saidamma was the ANM working at the relevant time. The regular practice was that the ANM goes to the classrooms of the children and notes down which of the child was with the menstrual cycle.
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The same shall be reflected in the Menses Register and it was being placed
before me.
Q. What were the steps that were being taken by you in case a girl child reported irregular menstrual cycle or the child did not have menstrual cycle for a month?
Ans: Depending upon the days, we calculate and in case there is an abnormal delay, the child is taken to PHC of the said area and is being examined by the
Medical officer.
Q. Who is the custodian of the Registers?
Ans: Accountant.
Q. Did the victim join in 10th class?
Ans: She came to the school premises on the reopening day. The aunt of the victim informed that the victim was in illhealth and they would sent her after she recouped.
Q. Did the victim have regular menstrual cycle in 9th class and were the entries made in the Register?
Ans: Yes. They were regular and entries were made.
Q. How often she was going to the village?
Ans: Once in two months.
Q. Was the school having compound wall?
Ans: Yes. There was compound wall of 6 feet on all four sides.
Q. Were there Watchmen?
Ans: Yes. There were two lady watchmen.
Q. What is the distance between KGBV, Chandampet and the village
Chandampet?
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Ans: The school is situated in the centre of the village.
Q. Do you preserve the registers and is there a prescribed period stipulated in the guidelines about the maintenance of registers?
Ans: Preserved and never destroyed.
So, from this it can be inferred that a protocol/standards exist in
K.G.B.V. schools with regard to safety; menstrual cycles of a girl child.
32.Now it is proper to look into evidence of Investigation Officer in crossexamination. It is as:
“The statement of the victim was not recorded by a women Police
Officer not below the rank of the SubInspector. PW7 did not state
before me that the victim was studying at KGBV, Chandampet. I made
a written requisition to PW8 for issuance of bonafide certificate of the victim. It is true I did not examine and did not record the statements of surrounding inhabitants. The victim was approximately 7 months pregnant. I did not ascertain the reasons from the victim or from her relatives the reason why the report was not preferred by them even after 7 months of pregnancy. Prior to the registration of this case I had no intimation from the ICDS Supervisor or from any official of the
Women and Child Welfare Department about this case. I visited KGBV,
Chandampet. I did not examine the class Teacher or any other classmates of the victim when the victim last attended the school. I did not investigate the date of delivery and in which hospital the victim 18
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delivered the female child. I have gone through DNA profiling report.
As per Ex.P16 the accused is not the biological father of the female child delivered by the victim. On the instructions of my higher officials
I filed charge sheet though DNA report was awaited.”
33.From the evidence of Investigation Officer, it can be understood that he did not pay any attention much less the aspect of paramount importance to the best interest of a child while a grave offence of this nature is perpetrated against her. It is a matter of prudence to relate date back the dates and months to ascertain the place where the victim might have been at the time of alleged offence. It is quite shocking that he did not examine the class Teacher; classmates of the victim when she last attended the school, though he had ample knowledge that victim was a 7 months pregnant child.
34.It is glaringly apparent on record that the Investigation Officer was not duty bound and had done faulty investigation which resulted in injustice to an orphan.
35.The plight of the victim cannot be compensated by any means except by delivering effective justice. This faulty investigation on the part of Investigation Officer resulted in a c hild not knowing her natural father throughout her life. Even after receipt of DNA profiling report that accused is not biological father of the child the victim gave birth to, no steps were taken to proceed further to fix up criminal culpability 19
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against the persons who perpetrated the offence. The conduct of
Medical Officer in not following the procedure laid under law and the faulty investigation of Investigation Officer reflects their gross negligence to perform their duties.
36.At this juncture, it is relevant to look into the decisions reported in, (i) State of Gujarat vs. Kishanbhai etc. reported in 2014(2) ALT (Crl)
SC – 32, wherein the Hon’ble Supreme Court held as follows:
“The investigating officials and the prosecutors involved in presenting this case, have miserably failed in discharging their duties. They have been instrumental in denying to serve the cause of justice. The misery of the family of the victim Gomi has remained unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scotfree. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome. Fearless now, because he could not be administered the punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected by the brutal crime committed by him. His actions now, know of no barriers. He could be expected to act in an unfathomable savage manner, uncomprehendable to a sane mind.
As we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of Gomi must never have stopped cursing themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalise her, during their lapse in attentiveness. And if the prosecution version about motive is correct, the crime was committed for a mere consideration of Rs.1,000/.
Every time there is an acquittal, the consequences are just the same, as have been noticed hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the accused respondent innocent, by upholding the order of the High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, 20
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despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade, or more. The expenses incurred by an accused in his defence can dry up all his financial resources – ancestral or personal. Criminal litigation could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over.
The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.
Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent.
On the culmination of a criminal case in acquittal, the concerned
investigating/prosecuting official(s) responsible for such acquittal must
necessarily be identified. A finding needs to be recorded in each case, whether
the lapse was innocent or blameworthy. Each erring officer must suffer the
consequences of his lapse, by appropriate departmental action, whenever
called for. Taking into consideration the seriousness of the matter, the
concerned official may be withdrawn from investigative responsibilities,
permanently or temporarily, depending purely on his culpability. We also feel
compelled to require the adoption of some indispensable measures, which may
reduce the malady suffered by parties on both sides of criminal litigation.
Accordingly we direct, the Home Department of every State Government, to
formulate a procedure for taking action against all erring
investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer
negligence or because of culpable lapses, must suffer departmental action. The
above mechanism formulated would infuse seriousness in the performance of
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investigating and prosecuting duties, and would ensure that investigation and
prosecution are purposeful and decisive.” ii)Dayal Singh and others vs. State of Uttaranchal in Criminal Appeal No.529 of 2010, the Hon’ble Supreme Court held that,
Settled canons of criminal jurisprudence when applied in their correct perspective, give rise to the following questions for consideration of the Court in the present appeal:
a) Where acts of omission and commission, deliberate or otherwise, are committed by the investigating agency or other significant witnesses instrumental in proving the offence, what approach, in appreciation of evidence, should be adopted?
Now, we will deal with the question of defective or improper investigation resulting from the acts of omission and/or commission, deliberate or otherwise, of the Investigating Officer or other material witnesses, who are obliged to perform certain duties in discharge of their functions and then to examine its effects. In order to examine this aspect in conformity with the rule of law and keeping in mind the basic principles of criminal jurisprudence, and the questions framed by us at the very outset of this judgment, the following points need consideration:
i) Whether there have been acts of omission and commission which have resulted in improper or defective investigation.
ii) Whether such default and/or acts of omission and commission have adversely affected the case of the prosecution.
iii) Whether such default and acts were deliberate, unintentional or resulted from unavoidable circumstances of a given case.
iv) If the dereliction of duty and omission to perform was deliberate, then is it obligatory upon the court to pass appropriate directions including directions in regard to taking of penal or other civil action against such officer/witness.
In order to answer these determinative parameters, the Courts would have to examine the prosecution evidence in its entirety, especially when a specific reference to the defective or irresponsible investigation is noticed in light of the facts and circumstances of a given case.
The Investigating Officer, as well as the doctor who are dealing with the
investigation of a criminal case, are obliged to act in accordance with the
police manual and the known canons of medical practice, respectively. They
are both obliged to be diligent, truthful and fair in their approach and
investigation. A default or breach of duty, intentionally or otherwise, can
sometimes prove fatal to the case of the prosecution. An Investigating Officer
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is completely responsible and answerable for the manner and methodology
adopted in completing his investigation. Where the default and omission is so
flagrant that it speaks volumes of a deliberate act or such irresponsible
attitude of investigation, no court can afford to overlook it, whether it did or
did not cause prejudice to the case of the prosecution. It is possible that
despite such default/omission, the prosecution may still prove its case beyond
reasonable doubt and the court can so return its finding. But, at the same time,
the default and omission would have a reasonable chance of defeating the case
of the prosecution in some events and the guilty could go scotfree.
Even the present case is a glaring example of irresponsible investigation.
It, in fact, smacks of intentional mischief to misdirect the investigation as well
as to withhold material evidence from the Court. It cannot be considered a
case of bona fide or unintentional omission or commission. It is not a case of
faulty investigation simplicitor but is an investigation coloured with
motivation or an attempt to ensure that the suspect can go scot free.
We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the Courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired. “
Those observations made by the Hon’ble Supreme Court of India clearly reflect that the Courts are expected to be vigilant while evaluating evidence and to come to a conclusion basing on whose fault the perpetrators of offence remained unpunished.
37.In this case, as mentioned supra, the callous and indifferent attitude of Investigation officer left untold misery to the victim and this
Court feels it is an appropriate case where the guidelines issued by the
Hon’ble Supreme Court must be put into action.
23
SC No.150 of 2016
38.Thus, in view of oral testimony of victim and medical evidence on record it is opined that prosecution failed to prove the guilt of accused beyond reasonable doubt for the charges under Sec.376(2)(i) IPC and
Sec.5(j)(ii) r/w. 6 of The POCSO Act, 2012.
39.Office is directed to send a copy of this Judgment to the
Superintendent of Police, Nalgonda and the Superintendent, Gandhi
Medical College, Secunderabad for following the guidelines of the
Hon’ble Supreme Court of India as directed and observed.
40.In the result, the accused is found not guilty for the offences under Secs.417, 376(2)(i) IPC and Sec.5(j)(ii) r/w. 6 of The Protection of Children from Sexual Offences Act, 2012 and is acquitted under
Sec.235(1) Cr.P.C. Bail bonds of the accused if any shall stands cancelled after lapse of appeal time. No compensation is awarded in view of the testimony given by the victim and as it is reported that the process for compensation before the authorities concerned (DWO) is pending.
Dictated to the Steno, transcribed and typed by him, corrected
and pronounced by me in the open Court on this the 6th day of April 2021.
III Addl. District & Sessions Judge, FAC: Judge, Special Fast Track Court for expeditious disposal of Rape and POCSO Act Cases, Nalgonda 24
SC No.150 of 2016
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF PROSECUTION
PW1LW1 Mendli EadammaComplainant & maternal aunt of the victim
PW2LW2 Name is not disclosed inVictim girl view of the bar under Sec.228A of IPC
PW3LW3 Jella AnjammaCircl. Witness & paternal aunt of the victim girl
PW4LW4 Mendi MallaiahCircl. Witness & Husband of thecomplainantand maternal uncle of the victim
PW5LW5 Jella MuthaiahCircl. Witness & husband of the paternal aunt of the victim
PW6LW6 Jella MuthammaCircl. Witness & grandmother of the victim
PW7LW7 Kolukulapally RamannaICDSSupervisorof Chandampet
PW8LW8 Mungari NeelambariSpecial officer, Kasthuriba School, Chandam, who issued Bonafide certificate
PW9LW9 Ravula NagarajuPanch for scene of offence & rough sketch of the scene of offence
PW10 LW11 Dr.Rathna Prabha, Medical Officer
PW11 LW12 Dr.JawaherlalMedical officer
PW12 LW14 G.Venkateshwar Reddy –Investigation Officer C.I.
WITNESSES EXAMINED ON BEHALF OF DEFENSE
NIL
EXHIBITS MARKED ON BEHALF OF PROSECUTION
Ex.P1Signature of PW1 on report Ex.P2161 CrPC statement of PW1 Ex.P3161 CrPC statement of PW2 Ex.P4161 CrPC statement of PW3 Ex.P5161 Cr.P.C. statement of PW4 Ex.P6161 Cr.P.C. statement of PW5 25
SC No.150 of 2016
Ex.P7161 Cr.P.C. statement of PW6 Ex.P8Bonafide Certificate Ex.P9Scene of offence panchanama Ex.P10Rough sketch map Ex.P11Preliminary report Ex.P12FSL report Ex.P13Final report Ex.P14Potency Certificate Ex.P15FIR Ex.P16DNA profile report
EXHIBITS MARKED ON BEHALF OF DEFENSE
NIL
MATERIAL OBJECTS
NIL
III Addl. District & Sessions Judge, FAC: Judge, Special Fast Track Court for expeditious disposal of Rape and POCSO Act Cases, Nalgonda