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IN THE COURT OF THE FAST TRACK SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF RAPE AND PROTECTION OF
CHILDREN AGAINST SEXUAL OFFENCES ACT (POCSO) ACT AT
KOTHAGUDEM
Thursday, this the 31 st day of March, 2022.
Present: Mohd. Abdul Rafi, V Addl.Sessions Judge, Kothagudem, FAC, Fast Track Sessions Judge- for expeditious disposal of cases of rape and- protection of children against sexual Offences Act- (POCSO) Act, Kothagudem.
SPECIAL SESSIONS CASE No. 66 OF 2017
1.Complainant::State represented by the Sub- Divisional Police Officer, Manuguru.
2.Names of the accused persons:A1:Perala Narasimha Rao, S/o. Krishna, Aged: 24 years now 29 years, Occ: Coolie,R/o.Thummalanagar, Yetapaka village of East Godavari District.
A2:Verpula Divya, W/o. Babu Rao, Aged: 26 years now 31 years, Occ: Coolie, R/o. Uppal, Hyderabad, N/o. Thummalanagar, Yetapaka Mandal of East Godavari District.
A3:Rayala Vasundhara @ Sandhya @ Sundaramma, W/o. Kanna, Aged: 45 years, now 51 years, Occ: Coolie, R/o. Uppal, Hyderabad, N/o. Nellipaka village of Yetapaka mandal of East Godavir District.
3.Crime Number::90/2016 of P.S.Edulla Bayyaram.
4.P.R.C.Number::---
5.Name of the Officer who ::--- committed the case.
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6.Prosecution conducted by::Sri P.V.D. Laxmi, Special Public Prosecutor, Kothagudem
7.Defence conducted by::Sri Sahu Santosh, Advocate,Kothagudem,
for accused Nos.1 to 3
8.Charges :: Accused No.1- Charges under Sections 366-A, 344, 376(2) of I.P.C and Section 6 of Protection of Children from Sexual Offences Act, 2012.
Accused Nos.2 and 3 – Charges under 366-A, 344 of I.P.C. and Section 17 of Protection of Children From Sexual Offences Act, 2012.
9.Plea of the accused persons.::“Not guilty”
10.Finding of the Court::“Found guilty”.
11.Result :: In the result, accused No.1 is found guilty for the offences punishable under Sections 344, 366 of I.P.C and Section 6 of the Protection of Children From Sexual Offences Act, 2012 and and accordingly he is convicted under Section 235(2) Cr.P.C for the said offences.
Accused Nos.2 and 3 are found not guilty for the offences punishable under Sections 366-A, 344 of I.P.C.and Section 17 of the Protection of Children From Sexual Offences Act, 2012 and they are acquitted under Section 235(1) Cr.P.C, for the said offences. The bail bonds of the accused Nos.2 and 3 shall be in force for a period of six months from this date.
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Thus, accused No.1 is sentenced toundergoRIGOROUS IMPRISONMENT for a period of Twenty (20) years and shall pay fine ofRs.10,000/- (Rupees Ten thousand only), in default of payment of fine, he shall further undergo Simple Imprisonment for a period of Six (6) months for the offence punishable underSection 6 of Protection of Children from Sexual Offences Act, 2012. Accused No.1 is further sentenced to undergo Rigorous Imprisonment for a period of Five (5) years and shall pay fine of Rs.5,000/- (Rupees five thousand only), in default of payment of fine, he shall further undergoSimple imprisonment for a period of Three (3) months for the offence punishable under Section 366 of IPC. Accused No.1 is further sentenced to undergo Rigorous Imprisonment for a period of One (1) Year and shall pay fine of Rs.1,000/- (Rupees one thousand only), in default of payment of fine, he shall further undergoSimple Imprisonment for a period of One (1) month for the offence punishable under Section 344 of I.P.C. The above substantial sentences passed against accused No.1 shall run concurrently. The total fine amount is that of Rs.16,000/- (Rupees Sixteen thousand only).
The remand period underwent by Accused No.1 from 24-11-2016 to 02-02-2017, from 01-11-2018 to 20-11-2018, from 28-11-2019 to 01-07-2021 and from 08-09-2021 till date i.e. 31-03-2022 shall be set off as against the term of imprisonment as
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per Section 428 of Cr.P.C. The unmarked case property, if any shall be destroyed after expiry of appeal time.
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This Sessions case came up before me on 17-03-2022 for final hearing; after hearing the arguments of Special Public Prosecutor for the State and that of Sri Sahu Santosh, counsel for accused Nos.1 to 3 ; upon perusing the material available on record and having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
1. The State represented by the Sub-Divisional Police Officer,
Manugur has laid a charge sheet in Cr.No.90/2016, of P.S. Edulla
Bayyaram charged under Sections 366-A, 344, 376(2) of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 against accused
No.1, charged under Sections 366-A, 344, 376(2) of IPC and Sections 6 and 17 of Protection of Children from Sexual Offences Act, 2012 r/w.
Section 109 of I.P.C against Nos.2 and 3 with the following allegations:-
i)That the defacto complainant by name Kondru Susheela (PW.1) is the mother of the victim girl and a resident of Pinapaka village, while Kondru Veeraiah (PW.2) is the father of the victim girl. P.Ws.1 and 2 are having two daughters, among them, Perala Sammakka (PW.3) is the elder daughter and her marriage was performed in the year 2012 with accused No.1, who is a resident of Thummala Nagar, Yetapaka mandal,
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East Godavari District. The victim is the younger daughter of P.Ws.1 and 2.
As per the study certificate, the date of birth of the victim girl was 20-06-2000 and her age was 16 years, one month 26 days as on the date of offence i.e. 15-08-2016 and her age was below 18 years. Whereas accused
No.1 is the son-in-law of P.Ws.1 and 2 and husband of PW.3. Soon after the marriage, PW.3 joined with the association of accused No.1 at his native village of Thummala nagar, Yetapaka mandal and they lead their marital life for a period of six months. Thereafter they were shifted to Pinapaka village and staying in the house of P.Ws.1 and 2, who are the parents of PW.3 by doing coolie works as well as running hire auto by accused No.1 ii)It is further alleged that, during month of March, 2016, while the victim girl was attending 10th class examinations, accused No.1 used to take away her at examination center located at Edulla Bayyaram from their house on the auto. When accused No.1 had a sexual desire on the victim girl, in pursuance of his desire, he induced the victim girl by saying that he fallen in love with her and would marry her, on believing his deceitful words, the victim girl also fallen love with him and during last summer after completion of examinations, accused No.1 seduced the victim girl to insist intercourse in her house, when she was alone and later continued to participate sexual intercourse with her.
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iii)It is further alleged that PW.3, who is the wife of the accused
No.1, suspected the movements of the accused No.1 with victim girl on finding of their several chit chats, so she warned accused No.1. On that pretext accused No.1 left the house, after passing 14 days, i.e. on 14-08-2016 accused No.1 returned to the house and he hatched a plan to kidnap the victim girl to sexual intercourse with her in the name of marriage and informed his plan to his sister by name Verpula Divya (accused No.2), upon that accused No.2 agreed to help accused No.1. According to his plan, on the evening of 15-08-2016, accused No.2 also reached to
Pinapaka village center. Then accused No.1 met to accused No.2 at
Pinapaka center. Then accused No.1 called the victim girl over phone to pinapaka center and then the victim girl (PW.9) reached to Pinapaka center from her house by saying her inmates of the house that she was going to hospital for treatment of her headache along with neighbour by name
Piryala Yashoda (PW.5) and she reached to Pinapaka village center, where the victim girl (PW.9) declined PW.5 and reached to accused Nos.1 and 2 and she boarded the auto, then accused Nos.1 and 2 took away the victim girl forcibly in the same auto to Bhadrachalam by saying deceitful words that accused No.1 would get marry her at Hyderabad. Thereafter they reached to Kothagudem by bus. Later, they reached to Secunderabad by train on the early morning of 16-08-2016.
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iv)It is further alleged that later accused Nos.1 and 2 and the victim girl (PW.9) reached to Mamidipalli village and taken a rented room and they stayed only for 15 days. Thereafter, they went to Jallepalli area and stayed only for one month in a house under construction and later they went to the house of accused No.3, who is younger grandmother of accused No.1, at Adarshnagar, Hyderabad, where accused No.1 informed the same episode to accused No.3, upon that accused No.3 knowingly the victim girl is a minor, she allowed in her house for staying, accused Nos.1 and 2 and victim girl stayed in the house of accused No.3 till the evening of 21-11-2016. During the said staying period, accused No.1 had participated in sexual intercourse with the victim (PW.9) in several times knowingly she is a minor. Later on the evening of 21-11-2016, the victim girl requested the accused No.1 to send her house, on the request of the victim girl, accused
No.1 brought the victim girl from Hyderabad to Bhadrachalam by RTC Bus on the early morning of 22-11-2016, accused No.1 let off from the victim girl, then victim girl reached to her house and narrated the entire story to her parents.
v)It is further alleged that on 15-09-2016, at 1.30 P.M., the mother of the victim girl by name Kondru Susheela (PW.1) went to P.S. Edulla
Bayyaram and lodged a report alleging that her younger daughter (PW.9) was found missing from her house and so also her son-in-law (accused
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No.1), they searched for her in all possible places of Burgampahad,
Sarapaka, Aswapuram, but in vain and further they have been suspecting that accused No.1 might have kidnapped her younger daughter (PW.9) by saying deceitful words and requested to take action. On the basis of the report lodged by PW.1, a case in Cr.No.90/206, under Section 366 of IPC was registered at P.S. Edulla Bayyaram and investigated into. During the course of investigation, E. Ratish, the then Sub-Inspector of Police, P.S.
Edulla Bayyaram (PW.15) visited the first scene of offence situated at the house of PW.1 at Pinapaka village, where he secured the presence of mediators namely Gottumukku Swathantra Reddy (PW.12) and Thokala
Samba Siva Rao (LW.15), in their presence incorporated the descriptive particulars of the scene of offence and also drawn Rough Sketch for the scene of offence in the Crime Details Form. Subsequently, PW.15 has collected the study and conduct certificate of the victim girl from Head
Master, ZPHS, Pinapaka by name Badavath Ramachandar (PW.6) for the age proof of the victim girl. As per the study and conduct certificate of the victim girl, she was born on 20-06-2000 and her age was 16 years one month 26 days as on 15-08-2016.
vi)It is further alleged that while making all efforts to locate the victim girl and accused No.1, on 22-11-2016 at 10-00 A.M, PW.1 came to
P.S. Edulla Bayyaram along with her husband (PW.2) and produced the
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victim girl (PW.9) before PW.15, upon that the said Sub-Inspector of Police (PW.15) has examined and recorded the statement of the victim girl. On the basis of the statement of victim girl, PW.15 added the Section of law under
Section 376(2) r/w. 109 of IPC and Sections 6 and 17 of the Protection of
Children from Sexual Offences Act, 2012 in addition to Section 366-A of IPC and issued Section alteration memo to that effect. Since the provisions of
Section 5 r/w. Section 6 of the POCSO Act is attracting in the given facts and the Sub-Divisional Police Officer rank officer is only competent authority to investigate such cases. Having received the copy of express memo from
PW.15 on 22-11-2016, at 1-00 P.M., on the same day B. Ashok Kumar,
Sub-Divisional Police Officer, Manugur (PW.18) has taken up investigation in this case, visited the first scene of offence, which is the house of PW.1 situated at Pinapaka village, where he re-examined and recorded the detailed statements of P.Ws.1 to 3, 5, 9 and Kondru Ramana (PW.4). He got videographed the statement of the victim girl (PW.9) with a private videographer by name Gajula Sravan Kumar (PW.8) in the presence of
Nakka Vijaya Kumari, ICDS worker, Bandarugudem (PW.7) and B.Shanthi,
Woman Head Constable-51 of P.S. Manuguru (PW.10) by following the due procedure laid down under Protection of Children from Sexual Offences Act, 2012, while recording the statement of the victim girl (PW.9).
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vii)It is further alleged that, while the investigation was in progress, on the instructions of PW.18, on 24-11-2016 at 10-00 A.M, Head Constable
No.713 of P.S. Edulla Bayyaram and his staff apprehended accused No.1 at
Pinapaka village and produced before PW.18 at his office, Manugur on the same day at 11-00 A.M. On interrogation, accused No.1 confessed to have committed the offence pertaining to this case and PW.18 effected the arrest of accused No.1 and got him remanded to judicial custody after following the due procedure. Further, on 23-01-2017 at 12-30 P.M., on reliable information and on the instructions of PW.15, Woman H.G-813 of P.S.
Edulla Bayyaram and staff apprehended accused Nos.2 and 3 at the house of accused No.2 at Thummala Nagar, Yetapaka mandal of East Godavari
District and taken them into custody and produced before PW.18 on the same day at 1.30 P.M. On interrogation, accused Nos.2 and 3 have confessed to have committed the offence pertaining to this case. Then
PW.18 effected the arrest of accused Nos.2 and 3 and got them remanded to judicial custody after following the due procedure.
viii)It is further alleged that PW.18 visited the second scene of offence at Adharshnagar, Hyderabad, where the victim girl (PW.9) kept by accused No.1 with the active instigation of accused Nos.2 and 3, where conducted the scene of offence panchanama and also noted the descriptive particulars of the scene and also drawn rough sketch for the scene of
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offence by securing the presence of mediators namely Butta Laxmikantha
Reddy (PW.13) and Harishmali (PW.16). He also examined and recorded the statements of Ulavala Chandrasekhar (LW.11), Paranam Rajasekhar (LW.12) and Bheem Kumar (PW.11). Subsequently, Pw.18 rushed to third scene of offence, which is situated at Jallepalli area, where accused No.1 kept the victim girl in the house under construction for some days and conducted the scene of offence panchanama by securing the presence of mediators namely Rapolu Ashok Kumar (PW.17) and Syed Riyaz (LW.19) and also noted the descriptive particulars of the scene of offence and drafted rough sketch for the scene of offence.
ix)It is further alleged that Dr. Sarala, Lady Medical Officer,
Government Area Hospital, Kothagudem (PW.14) has examined the victim girl and issued Medical certificate, wherein she opined that the Hymen is not intact and she participated in sexual intercourse. Dr.Y.Vijaya, Medical
Officer, Government Area Hospital, Kothagudem (LW.21) who conducted potency test over accused No.1, issued a report, wherein he opined that there is nothing to suggest that the male examined is not capable of performing sexual act and the person is incapable of performing the sexual act. Later, PW.18 filed a requisition before the Judicial Magistrate of First
Class, Bhadrachalam (LW.22) with a request to record the statement of victim girl under Section 164 Cr.P.C. Accordingly, Sri K.K.V.Buli Krishna,
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Judicial Magistrate of First Class, Bhadrachalam (LW.22) recorded the
statement of the victim girl under Section 164 of Cr.P.C. Hence, the charge.
2.This case was taken on file by the Court of I Addl.Sessions Judge- cum- Special Court for trial of cases under Protection of Children from
Sexual Offences Act, 2012, Khammam, vide SSC.No.66/2017, under
Sections 366-A, 344, 376(2) of IPC and Section 6 of POCSO Act against accused No.1 and under Sections 366-A, 344, 376(2) of IPC, Sections 6 and 17 of POCSO Act r/w. Section 109 of IPC against accused Nos.2 and
3. On appearance of the accused Nos.1 to 3 before that court, all the case documents, on which, the prosecution has relied upon were furnished to them as required under Section 207 of Cr.P.C.
3.On 16-11-2019, this case was transferred to II Addl.District and
Sessions Judge’s Court, (FTC), Khammam, as per the proceedings of the
Hon’ble Prl.District and Sessions Judge, Khammam in Order Dis.No.6144
dated 12-11-2019. On receipt of the case record from I Addl.District and
Sessions Judge’s Court, Khammam, II Additional District and Sessions
Judge’s Court (FTC), Khammam proceeded with the case against the
accused persons.
4.On 30-09-2019, on production of accused No.1 from District jail,
Khammam and on appearance of accused Nos.2 and 3, they were
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examined under Section 228 Cr.P.C by explaining the accusation made against them, wherein they denied the commission of offence. Upon consideration of the case record and documents submitted therein, after hearing the arguments on both sides, it was opined that there is ground for presuming that accused persons have committed the offences, whereupon charges under Sections 366-A, 344, 376(2) of IPC and Section 6 of POCSO
Act were framed against accused No.1, Sections 366-A, 344 of I.P.C. and
Section 17 of POCSO Act were framed against accused Nos.2 and 3, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.
5.Thereafter, the trial was commenced by the II Additional Sessions
Judge (FTC), Khammam and major part of the trial was completed and
while the case was coming up for further evidence of the prosecution, at that stage, on establishment of Special Court for trial of the cases under
POCSO Act, 2012 at Kothagudem and as per the proceedings of Hon’ble
Prl.District and Sessions Judge, Khammam vide Order Dis.No.842 dated 05-03-2021, the case was transferred to this Special Court from II
Addl.District and Sessions Court, (FTC), Khammam. On receipt of the case record from II Addl.District and Sessions Court, (FTC), Khammam, this
Special Court proceeded with the case against accused Nos.1 to 3.
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6.At the time of trial, the prosecution has examined P.Ws.1 to 18 and got marked Exs.P1 to P13. The prosecution has given up the evidence of
Ulavala Chandrasekhar (LW.11), Paranam Rajasekhar (LW.12), Thokala
Sambasiva Rao (LW.15), Syed Riyaz (LW.19). The prosecution failed to examine Dr.Y.Vijay, Medical Officer, Government Headquarters Hospital,
Khammam (LW.21) inspite of giving sufficient time and several opportunities.
7.On closure of the prosecution evidence, accused Nos.1 to 3 were examined under Section 313 Cr.P.C. by explaining the incriminating circumstances appearing against them in the evidence adduced by the prosecution, for which, they denied the incriminating circumstances, did not prefer to adduce any oral or documentary evidence on their behalf.
8. Heard arguments on both sides and perused the relevant record.
9. Now the points for determination are:
i).Whether accused No.1 kidnapped the victim girl with his deceitful words by making a false promise that he would marry her?
ii).Whether the accused No.1 has committed penetrative sexual assault on the victim girl (P.W.9) repeatedly knowing that she is a minor girl?
iii).Whether accused Nos.2 and 3 supported accused No.1 in kidnapping the minor victim girl (PW.9) taken her from her parents and gave shelter in the house of accused No.3 for
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committing sexual acts with the minor girl by accused No.1?
iv).Whether the prosecution has proved its case against accused No.1 for the offences punishable under Sections 366-A, 344, 376(2) of I.P.C and Section 6 of the Protection of Children from Sexual Offences Act, 2012, Accused Nos.2 and 3 for the offences punishable under Sections 366-A, 344 of IPC and Section 17 of Protection of Children from Sexual Offences Act, 2012 beyond all reasonable doubts?
10. The prosecution story, in brief, is that, accused No.1 deceitfully induced the victim girl (PW.9) taken away her from her parents on 15-08- 2016 to the house of accused No.3 at Adharshnagar, Hyderabad, with the active instigation of accused Nos.2 and 3 where accused No.1 stayed in the house of accused No.3 along with the victim girl (PW.9), till evening of 21- 11-2016, during the period accused No.1 participated in sexual intercourse with the victim girl (PW.9) repeatedly knowingly she is a minor girl, as a result of which, the victim minor girl (PW.9) is sexually exploited by the accused No.1 which caused harm to her body, mind and reputation and therefore, accused No.1 is liable for punishment for the offences punishable under Sections 366-A, 344, 376 (2) of IPC and Section 6 of Protection of
Children from Sexual Offences Act, 2012 and Accused Nos.2 and 3 are liable for punishment for the offences punishable under Sections 366-A, 344 of IPC and Section 17 of Protection of Children from Sexual Offences Act,
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2012. On the other hand, the defence of accused Nos.1 to 3 is one of total denial of the prosecution case.
11. In order to prove the guilt of accused Nos.1 to 3, the prosecution has examined as many as 18 witnesses, out of them, the defacto complainant and the mother of the victim girl by name Kondru
Susheela was examined as P.W.1, father of the victim girl by name Kondru
Veeraiah was examined as P.W.2, elder sister of the victim girl and the wife of accused No.1 by name Perla Sammakka was examined as PW.3.
Co-sister of PW.1 by name Kondru Ramana was examined as PW.4, the neightbour of the victim girl by name Piryala Yashoda, who accompanied the victim girl from her house to Pinapaka center was examined as PW.5.
Badavath Ramachander, Headmaster, ZPHS, Pinapaka who issued Study and Conduct certificate of the victim girl was examined as PW.6. Nakka
Vijay Kumari, ICDS worker, Bandarugudem, in whose presence the victim girl narrated the incidents was examined as PW.7. Gajula Sravan Kumar, who is the private videographer, who video-graphed the proceedings in respect of the statement given by the victim girl in the presence of P.Ws.7 and 10 was examined as PW.8. The victim girl was examined as PW.9.
B.Santhi, Woman Head Constable 51 of P.S. Manuguru, who was present at the time of recording the statement of the victim girl was examined as
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PW.10. Bheem Kumar, who is the owner of the rented house of accused
No.3 of Adharshnagar, Hyderabad was examined as PW.11. Gottumukku
Swathantra Reddy, who is one of the mediators in respect of CDF-1 first
Scene of offence at Pinapaka was examined as PW.12. Butta Laxmikantha
Reddy and Harishmali, who are said to be the mediators in respect of CDF- 2 at Adarshnagar, Hyderabad were examined as P.Ws.13 and 16 respectively. Dr.Sarala, Lady Medical Officer, Government Area Hospital,
Kothagudem, who examined the victim girl and issued Medical Certificate was examined as PW.14. E. Ratish, the then Sub-Inspector of Police, P.S.
Edulla Bayyaram, who is the first investigation officer in this case was examined as PW.15. Rapolu Ashok Kumar, who is said to be the mediator in respect of CDF-3 at Jallepalli village of Ranga Reddy District was examined as PW.17. B. Ashok Kumar, the then Sub-Divisional Police
Officer, Manugur, who is the 2nd Investigation Officer in this case, who filed a charge sheet against the accused persons was examined as PW.18.
12. In support of the oral evidence, the prosecution is seeking to rely upon the following documents. Ex.P1 is the report dated 15-09-2016 lodged by P.W.1 to the Police concerned. Ex.P2 is Section 161 Cr.P.C statement of PW.5 recorded by PW.15. Ex.P3 is Section 161 Cr.P.C.
statement of PW.5 recorded by PW.18. Ex.P4 is Study and conduct certificate of the victim girl issued by PW.6. Ex.P5 is the Compact disc,
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wherein recorded the statement of the victim girl in the presence of P.Ws.7 and 10. Ex.P6 is Section 164 Cr.P.C. statement of the victim girl. Ex.P7 is the CDF-1 at the house of PW.1, Pinapaka village. Ex.P8 is the CDF-2 at the house of accused No.3 at Adarshnagar, Hyderabad. Ex.P9 is the
Medical certificate of the victim girl issued by PW.12. Ex.P10 is the FIR issued by PW.15. Ex.P11 is the Section alteration memo issued by PW.15.
Ex.P12 is signature of PW.16 on CDF-2 dated 10-12-2017. Ex.P13 is the
CDF-3 dated 10-02-2017 at Jallepalli of Ranga Reddy District.
13. In order to establish the charges levelled against accused
Nos.1 to 3, the prosecution has examined P.Ws.1 to 18, among them,
P.W.9 is the main witness on whose testimony the entire case of the prosecution relied upon. In addition to the oral testimony of P.Ws.1 to 18, the prosecution is seeking to rely upon the documentary evidence. The oral evidence of P.Ws.1 to 18 and the documentary evidence (Exs.P1 to P13) is to be appreciated by the court. No material discrepancies going to the root of the case have been elicited in the cross examination of material witnesses. Therefore, there is no reason for these witnesses is coming-forth to speak falsehood as against accused Nos.1 to 3. Thus, there is nothing to discredit the testimony of these material witnesses and their evidence is consistent throughout and inspires the confidence of the court. Therefore,
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these witnesses can be believed and can be depended upon in adjudicating the matter.
POINTS i) to iii):-
14.It is to be first seen whether the victim girl (PW.9) is a “child” as defined under Section 2(d) of the Protection of Children from Sexual
Offences Act, 2012. As per the prosecution, the victim girl (P.W.9) is aged 16 years one month 26 days i.e. below 18 years as on the date of offence i.e. on 15-08-2016. In order to establish the age of the victim girl, the prosecution has examined the victim girl (P.W.9), and Headmaster, ZPHS,
Pinapaka by name Badavath Ramachander (PW.6). P.W.9 who is victim girl, in her evidence stated that her date of birth was 20-06-2000. She studied 10th class at Government High School, Pinapaka. PW.6-Badavath
Ramachander, in his evidence stated that he worked as incharge
Headmaster, ZPHS, Pinapaka from 2009 to 2018. The victim girl (PW.9) studied 6th class to 10th class at ZPHS, Pinapaka during the academic years 2011-2016. On the request of the police concerned, he issued Ex.P4-
Study and conduct certificate of the victim girl, wherein her date of birth was
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recorded as 20-06-2000. The victim girl was admitted in ZPHS, Pinapaka on 18-6-2011 vide Admission No.4213.
15.On perusal of oral evidence of PW.9, read together with the evidence of PW.6 coupled with Ex.P4-study and conduct certificate of the victim, it establishes that the victim girl was aged 16 years one month 26 days as on the date of the alleged offence on 15-08-2016. There was no suggestion in the cross examination of PW.9, on behalf of the accused persons in respect of the date of birth of PW.9, but it was suggested to PW.6 in his cross examination on behalf of the accused persons that due to the influence of
Police Edulla Bayyaram, he issued Ex.P4-study and conduct certificate of the victim girl with incorrect date of birth and that he has no right to decide or certify the date of birth of the victim girl and the said suggestion was denied by PW.6 in his cross examination. Therefore, it can be safely concluded that the prosecution has established that the age of the victim girl was 16 years one month 26 days as on the date of offence on 15-08-2016.
Hence, the victim girl is a child and she was below the age of 18 years by the date of alleged incident as per Section 2(d) of the Protection of Children from Sexual Offences Act, 2012.
16.It is to be next seen whether accused No.1 with his deceitful words induced the victim girl (PW.9) taken away her from her house to
Adarshnagar, Hyderabad and committed aggravated penetrative sexual
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assault with the victim girl. As per the prosecution, accused No.1 with his deceitful words induced the victim girl, taken away from her parents on 15-08-2016 at Pinapaka village to the rented house of accused No.3 at
Adarshnagar, Hyderabad with the active instigation of accused Nos.2 and 3, where accused No.1 stayed along with the victim girl in the house of accused No.3 till the evening of 21-11-2016. During the said stay period, accused No.1 participated in sexual intercourse with the victim girl repeatedly from 15-08-2016 to 21-11-2016 knowingly that she is a minor girl, as a result of which, the victim girl is sexually exploited by accused
No.1, who caused harm to her body, mind and reputation. The court expects from the prosecution to produce the evidence to prove the guilt of the accused persons in particular case. In my opinion, it depends upon the case to case and according to the case and circumstances, expectation of producing the evidence from the side of prosecution be made. It is said to be proposition of law that single testimony is sufficient to hold the guilt for the offences under the provisions of Protection of Children from Sexual
Offences Act, 2012.
17.Section 6 of Protection of Children from Sexual Offences Act, 2012 is quoted as under:-
“Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous
imprisonment for a term which shall not be less than
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twenty years but which may extend to imprisonment
for life, which shall mean imprisonment for the
remainder of the natural life of that person and shall
also be liable to fine or with death”
18. Aggravated sexual assault is defined under Section 5 of the
Protection of Children from Sexual Offences Act, 2012, is quoted as under:-
“Whoever commits penetrative sexual assault on the
child more than once or repeatedly.
19. “Penetrative sexual assault” defined under Section 3 of the
Protection of Children from Sexual Offences Act, 2012. Section 3 of the
Protection of Children from Sexual Offiences Act, 2012 is quoted as under:-
A person is said to commit "penetrative sexual assault" if—
(a) he penetrates his penis, to any extent, into the vagina, 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 vagina, 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 vagina, 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, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
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20.Section 2(1)(a) and (f) of the Protection of Children from Sexual
Offences Act, 2012 is quoted as under:-
a)"aggravated penetrative sexual assault" has the same meaning as assigned to it in section 5 of the Protection of Children from Sexual Offences Act.
(f)"penetrative sexual assault" has the same meaning as assigned to it in section 3 of the Protection of Children from Sexual Offences Act.
21.According to Section 2(1)(a), Section 3, Section 5 (l) and Section 6 of the Protection of Children From Sexual Offences Act, 2012, a person commits aggravated penetrative sexual assault even on the child more than once or repeatedly, he penetrates his penis or inserts any object or manipulates any part of the body or applies his mouth to the penis, vagina, urethra, anus and shall be punishable under Section 6 of the P.O.C.S.O Act as having done aggravated penetrative sexual assault. Hence, it is very clear that for the punishment under Section 6 of the Protection of Children from Sexual Offences Act, penetration of penis in vagina is not necessary if it is proved beyond reasonable doubt that the accused person penetrate his penis in her vagina or apply his mouth to the penis shall be convicted under
Section 6 of the Protection of Children from Sexual Offences Act, 2012.
22.P.W.9, who is the victim girl, in her evidence stated that accused
No.1 had married her elder sister by name Perla Sammakka (PW.3) and
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they were living with her parents at Pinapaka village. Accused No.1 was doing driving for his livelihood. In the year, 2015 she was studying 10th class at ZPHS, Pinapaka village and she wrote 10th class examinations at
High school of Edulla Bayyaram, which is examination center she attended the Public Examinations of S.S.C at her examination Centre by the Auto of accused No.1 from her house at Pinapaka village. Accused No.1 being her brother-in-law taking the same as advantage, started closely moved to her, taking her close acquaintance. He expressed his love proposal to her and he would marry her. She believed her deceitful words that he would look after her besides PW.3 and he participated in sexual intercourse with her in her house. After completion of 10th class exams, after some time, she came to Pinapaka village center along with her neighbour by name Piryala
Yashoda (PW.5) on the pretext of medical check up in the hospital.
Accused No.1 reached to Pinapaka center on his auto, then she reached
Pinapaka Center along with PW.5, accused No.1 forcibly taken her in the auto by leaving PW.5 and she was taken by accused No.1 in his auto and kept auto at bus stand, Pinapaka and she was taken to Mamidipalli in the bus and accused No.1 has taken rented room and they stayed for 15 days in a room and during the said period accused No.1 had sexual inter course with her.
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23.PW.9 in her evidence further stated that later she was taken from
Mamidipalli village by accused No.1 to the rental house of accused No.3 at
Adarshnagar, Uppal area , Hyderabad. Accused No.3 who is related to accused No.1 allowed them to stay in her rental house and they stayed for a period of one month in the house of accused No.3. During the said period, accused No.1 had sexual inter course with her. Later, she was taken to Thummala Nagar, Bhadrachalam to the house of accused No.1 and she was told that they have to stay there and also told her that he would marry her From Thummala Nagar, she was brought by the police to
Pinapaka PS. Her statement (Ex.P6) was recorded by the Judicial
Magistrate at Bhadrachalam. Her date of birth is 20.06.2000, she studied
10th class Z.P.High School, Pinapaka village.
24.It was elicited in the cross examination of PW.9 on behalf of the accused persons that she wrote 10th class final examinations in the month of March, 2016. Accused No.1 and PW.3 used to quarrel with each other.
When accused No.1 forcibly taken her in the auto, she shouted, but accused No.1 closed her mouth with one hand and drove the auto with another hand. Three months after the marriage, disputes started between
PW.3 and accused No.1. It was suggested to PW.9 in her cross examination on behalf of the accused persons that as there were disputes between PW.3 and accused No.1, accused No.1 left Pinapaka village and
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residing at his parents house and that accused Nos.1 to 3 were falsely implicated in this case to take revenge against accused No.1 and that accused No.1 did not participate in sexual intercourse with her and that accused No.1 did not stay for a period of one month in the house of accused No.1 at Adharshnagar, Uppal, Hyderabad and the said suggestions were denied by PW.9 in her cross examination.
25.PW.1-Kondru Susheela, who is the mother of PW.9, in her evidence stated that about six years ago from 10-03-2020 they performed the marriage of their elder daughter by name Sammakka (PW.3) with accused
No.1. After six months of their marriage, their daughter (PW.3) and accused No.1 came to their house and started residing along with them and accused No.1 was eking out his livelihood by driving auto. In the year 2015, her younger daughter (PW.9) was studying 10th class. Accused No.1 used to drop PW.9 at Garla Bayyaram in his auto and used to pick up her while she was coming back to house. On the date of her last examination in the 10th class after writing examination, she returned to home, but accused
No.1 did not turn up. On that day morning accused No.1 picked up her for final examination. After attending to home, PW.9 went to Government
Hospital, Pinapaka for medical check up. Later she did not turn up, upon that they suspected accused No.1 on the ground that three days prior to the incident, her elder daughter by name Sammakka (PW.3) found accused
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No.1 while he was chit chatting with her younger daughter (PW.9). They searched for PW.9 for a period of one month, but she was not traced out.
She lodged Ex.P1-report in P.S. Edulla Bayyaram. They suspected accused No.1 eloped PW.9 from her house. Later they came to know that accused No.1 took PW.9 to Hyderabad, two months thereafter accused
No.1 and PW.9 returned to their house. PW.9 with the help of PW.5 went to the Government Hospital, Pinapaka. She was informed that accused
Nos.1 and 2 came in auto and took PW.9 along with them and PW.5 returned back. PW.9 also informed her that accused Nos.1 and 2 took her to the house of accused No.3.
26.As seen from the evidence of PW.1, she has no personal knowledge with regard to the aforesaid incidents. But PW.1 came to know through
PW.5, who is daughter of her cousin that on the date of the incident, PW.9 left their house along with PW.5 and on the pretext of medical check up at
Government Hospital, Pinapaka and when they reached Pinapaka center, accused No.1 was waiting with his auto along with accused No.2 and they both took PW.9 from Pinapaka center in the auto of accused No.1 by leaving PW.5 and thereafter PW.5 alone returned back to the house.
Further, PW.1 came to know through PW.9 that accused Nos.1 and 2 took
PW.9 to the house of accused No.3 at Hyderabad, where accused No.1 stayed along with PW.9.
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27.PW.2-Kondru Veeraiah, who is the father of victim girl, in his evidence stated in the similar manner as that of PW.1 and thereby he supported the testimony of PW.1 in all respects. PW.2 in his evidence further stated that PW.9, who is his younger daughter used to attend the examinations Garla Bayyaram High School in the auto of accused No.1, who used to drop the victim girl to the examination center and thereafter dropped at their house after writing examination. On the date of the incident, during evening time, PW.9 went to the hospital for medical check up and later she did not turn up to the house. PW.3, who is his elder daughter, suspected that accused No.1 eloped PW.9 on the ground that she found accused No.1 chit chatting with the victim girl, they searched for their daughter (PW.9), but she was not traced out. Then PW.1 lodged a report in P.S. Edulla Bayyaram. Two months after the incident, PW.9 returned to Pinapaka and informed them that accused No.1 forcibly took
PW.9 in his auto and later took her to Hyderabad to the house of accused
No.3 on the pretext of marrying her. As seen from the evidence of PW.2, he has no personal knowledge with regard to the aforesaid incidents. He came to know through PW.9 that accused No.1 kidnapped her (PW.9) from
Pinapaka center and took her to Hyderabad to the house of accused No.3 and they stayed there and after two months of the incident, PW.9 returned back to their house.
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28.PW.3-Perla Sammakka, who is the elder sister of the victim girl, in her evidence stated that her marriage was performed with accused No.1 about five years ago, prior to 10-03-2020. Out of the wed lock, they were blessed with two children. Soon after the marriage, she joined with the association of accused No.1 at his house at Thummala Nagar and they lived together there for a period of six months and thereafter they started residing at her parents house at Pinapaka and her husband was running auto. In the year 2015, PW.9, who is her younger sister, was studying 10th class, she was aged 16 years at that time. Accused No.1 used to pick up her sister from their house to write examinations at Edulla Bayyaram. On one day she heard that accused No. 1 was chit chatting with her sister (PW.9) that he liked her and that he cannot live without her. On witnessing the same, when she questioned accused No.1, then he quarreled with her and left the house. After three days, her younger sister (PW.9) left the house on the pretext of medical check up at Government Hospital,
Pinapaka in the evening hours and later she did not turn up, she informed her parents that PW.9 did not turn up and she also informed to her mother (PW.1) that accused No.1 quarreled with her. In the aforesaid incident wherein accused No.1 quarreled with her and left the house. She suspected that accused No.1 eloped PW.9 as he was moving closely with her. Her parents searched for accused No.1 and PW.9 for a period of one
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month, but PW.9 was not traced out. Her mother lodged a report with the
Police concerned.
29.PW.3 in her evidence further stated that after three months, accused
No.1 came to house at Thummala Nagar along with PW.9, on the same day PW.9 returned to her parents house. On her enquiry, she was informed by PW.9 that she was forcibly taken away by accused No.1 from
Pinapaka center, where she was accompanied by PW.5 from their house to the hospital. She was further informed by PW.9 that prior to the incident, accused No.1 gave a mobile phone to her to talk with him secretly. On the date of the incident, accused No.1 came near hospital, Pinapaka and from there accused No.1 took PW.9 by telling deceitful words by leaving PW.5.
She was taken by accused No.1 to Hyderabad by train and they stayed in the house of accused No.3 at Uppal. When her sister was informing the aforesaid things to her, at that time, her parents (P.Ws.1 and 2) were also present. It was suggested to PW.3 in her cross examination on behalf of accused persons that accused No.1 did not take PW.9 to the house of accused No.3 and after three months, accused No.1 did not go to
Thummala Nagar along with PW.9 and the said suggestions were denied by PW.3 in her cross examination.
30.PW.4-Kondru Ramana, who is the cousin of PW.1, in her evidence stated that the marriage of PW.3 was performed with accused No.1 about
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five years ago prior to 10-03-2020. Soon after the marriage PW.3 joined with the association of accused No.1 at his house Thummala Nagar and they lived together for a period of three months there and thereafter they shifted their shelter to the house of PW.1. Accused No.1 was running auto,
On one day, she was informed by PW.1 over phone that accused Nos.1 and 2 took PW.9 to Hyderabad from the Government Hospital, Pinapaka when PW.9 went to the hospital along with PW.5. P.Ws.1 and 2, who are the parents of the victim girl, searched for the victim girl, but she was not traced out and then they lodged a report in P.S.Edulla Bayyaram. Two months thereafter PW.9 came to Bhadrachalam, from there she came to her parents house at Pinapaka. On knowing the same, she went to the house of PW.1. On enquiry, PW.9 informed her that accused No.1 had sexual intercourse with her at the house of accused No.3. As seen from the evidence of PW.4, she came to know through the victim girl andher parents about taking away PW.9 from the Government Hospital, Pinapaka by accused No.1 to the house of accused No.3, where accused No.1 had sexual intercourse with PW.9 and after two months, accused No.1 came to his house along with PW.9 and thereafter PW.9 reached the house of her parents.
31.PW.5-Piryala Yashoda, who is neighbour of the victim girl, in her evidence did not support the prosecution case. Therefore, the learned
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Special Public Prosecutor declared PW.5 as hostile subjected to cross examine her. Even after her cross examination, nothing incriminating was elicited as against accused No.1. PW.5, who gave incriminating statements against accused Nos.1 and 2 before the police concerned when she was examined under Section 161 Cr.P.C turned hostile while she was giving evidence before the Court. At the instance of learned Special Public
Prosecutor, she was declared as hostile and her Section 161 Cr.P.C.
statement was marked as Ex.P2.
32.PW.7-Nakka Viaya Kumari, in whose presence the statement of the victim girl was videographed, in her evidence stated that she is ICDS worker. She was summoned to the house of PW.1 by the Police Edulla
Bayyaram. She met with PW.9 in the house of PW.1, in the presence of B.
Shanthi, Woman Head Constable of P.S.Manuguru (PW.10), who recorded the statement of PW.9 and the same was videographed by Gajula Sravan
Kumar (PW.8). On enquiry, the victim girl stated that her sister’s husband (accused No.1) fallen in love with her and in the absence of her sister (PW.3) had sexual intercourse with her forcibly in their house. Later, her sister (PW.3) got suspicion and questioned accused No.1, upon that, she was taken by accused No.1 to Hyderabad. As seen from the evidence of
PW.7, she stated that on enquiry with the victim girl, she stated that accused No.1 had sexual intercourse with her in their house, for which,
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PW.3 got suspicion and quarreled with accused No.1 and as such the victim girl (PW.9) was taken to Hyderabad by accused No.1 away from her house.
33.PW.8-Gajula Sravan Kumar, who is private videographer, in his evidence stated that four years ago prior to 01-12-2020, he was called to the house of PW.1 situated at SC colony, Pinapaka village and accordingly, he went to the house of PW.1 and at that time one Woman Head
Constable, P.S. Manuguru by name B.Shanthi (PW.10) was present along with PW.7. PW.7 enquired the victim girl about the happenings against her and he vidoegraphed the said proceedings. After completion of the statement of the victim girl, the said video was made into CD and handed over to Police concerned. Ex.P5 is the same CD containing the video in respect of the statement of the victim girl in the presence of P.Ws.7 and 10.
PW.9 stated in the presence of P.Ws.7 and 10 that her elder sister’s husband took her without informing her family members to Uppal and had sexual intercourse with her and sent back to her house Pinapaka on 22-11-2016.
34.PW.10-B.Shanthi, Woman Head Constable, P.S. Manuguru in her evidence stated that on 22-11-2016, as per the instructions of Sub-
Divisional Police Officer, Manuguru, she secured the ICDS worker (PW.7) and videographer (PW.8) along with them she went to Pinapaka village to
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the house of PW.9, in her presence, PW.7 enquired PW.9 with regard to the happenings against her, upon that PW.9 stated that, she had acquaintance with her brother-in-law (accused No.1) and he developed illegal contact with her and it was known to her sister (PW.3), who is wife of accused No.1, then her sister (PW.3) admonished accused No.1, upon that accused No.1 left the house without informing to anyone. PW.9 also stated that after 14 days, accused No.1 returned to Pinapaka village and contacted her neighbour by name Yashoda (PW.5) and through, her he talked with her and then she went to Bayyaram cross roads on the pretext of medical check up at the hospital. In the cross roads, accused No.1 was waiting with auto along with her sister, then she sat in the auto of accused
No.1 along with accused No.2 and they went to Bhadrachalam in the auto, later Kothagudem and Secunderabad by train. On 22-11-2016, she returned back to the house. PW.9 also stated that in all those days, when she stayed with accused No.1 at Hyderabad, accused No.1 had sexual intercourse with her. She recorded the statement of PW.9 in the presence of PW.7 and the same was video-graphed by PW.8.
35.As seen from the evidence of PW.10, on 22-11-2016, she along with
ICDS worker (PW.7) and private video-grapher (PW.8) went to the house of the victim girl (PW.9) at SC colony, Pinapaka. In her presence, PW.7 enquired the victim girl (PW.9) with regard to the happenings against her
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and upon that PW.9 narrated the incidents wherein she was taken from
Pinapaka to the Uppal, Hyderabad and stayed there. Accused No.1 had sexual intercourse with her and later on 22-11-2016 she returned back to
Pinapaka village and the said statement was noted down by her and the same was video-graphed by PW.8 and the said videograph was made into
CD and handed over to the police concerned and Ex.P4 is the said compact disc.
36.PW.11- Bheem Kumar, who is the owner of the rented house of accused No.3, in his evidence stated that accused No.3 resided in his house situated at Adarsha Nagar, Uppal, Hyderabad as tenant. About five years ago from 29-01-2021, he noticed one male person along with female person came to the house of accused No.3. Accused No.1 is the same male person. When he enquired accused No.1 about his relationship with the said female person and he was informed by accused No.1 that she is his wife. Accused No.1 along with the said female person stayed in the house of accused No.3. As seen from the evidence of PW.11, he stated that accused No.1 stayed in the house of accused No.3 along with one female person.
37. PW.14-Dr.S.Sarala, the then Civil Assistant Surgeon, Government
Area Hospital, Kothagudem, who said to be examined the victim girl, in her evidence stated that on 23-11-2016, she received a requisition from P.S
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Edulla Bayyaram along with victim girl (PW.9) through Woman Home guard for examination of the victim girl. Accordingly she has examined the victim girl and found external genitalia well developed, Vulva-healthy, vagina- admitting two fingers, white discharge positive, foul smelling positive,
Hymen not intact, cervix – healthy. She issued Ex.P9-medical certificate opining that Hymen of the victim girl is not intact and the victim girl was participated in sexual intercourse prior to that . As seen from the evidence of PW.14, she stated that the victim girl is not virgin and she participated in sexual intercourse.
38.PW.15- E.Ratish, the then Sub-Inspector of Police, P.S. Edulla
Bayyaram, who is the first investigation officer in this case, in his evidence stated that on 15-09-2016, on receipt of Ex.P1 report from PW.1, he registered a case in Cr.No.90/2016, U/sec.366 of IPC and he issued
Ex.P10-FIR. During the course of investigation, he has examined and recorded the statement of PW.1 at police station. On the same day, he visited the scene of offence situated at Pinapaka village, near the house of
PW.2, where he secured the presence of two mediators namely
G.Swathantra Reddy (PW.12) and Thokala Sambasiva Rao (LW.15) in their presence, he prepared Ex.P7-CDF, he drawn Rough Sketch for the scene of offence in the relevant column of Ex.P7-CDF. Further he has examined and recorded the statements of P.Ws.2 to 6 and 9. He referred the victim
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girl (PW.9) to the Government Area Hospital, Kothagudem for medical examination. Basing on the statement of PW.9, he altered the section of
Law from 366 of IPC to 366(A), 376(2) r/w 109 of IPC and Sections 6 and 17 of POCSO Act, 2012 and issued Alteration Memo (Ex.P11) to that effect. As offences involved in this case are grave in nature, he intimated and handed over the case file to the Sub-Divisional Police Officer,
Manuguru by name Ashok Kumar (PW.18) for conducting investigation. As seen from the evidence of PW.15, he stated that he prepared Ex.P6-CDF-1 in the presence of PW.12 and another at Pinapaka village near the house of PW.2. This part of testimony made by PW.15 is supported by the evidence of PW.12-Swathantra Reddy, with regard to preparing Ex.P7-
Crime Details Form at Pinapaka village near the house of PW.2.
39.The final evidence before the Court is that of PW.18-B.Ashok Kumar, the then Sub-Divisional Police Officer, Manuguru, who is the 2nd investigation officer in this case. In his evidence stated that on 22-11-2016, he took up investigation in this case and received CD file from PW.15. On the same day, he has examined and re-recorded the statements of P.Ws.1 to 10. The victim girl (PW.9) was already referred to the medical examination along with requisition. He filed requisition before the Judicial
Magistrate of First Class, Bhadrachalam with a request to record the
statement of victim girl under Section 164 Cr.P.C. Accordingly, the learned
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Judicial Magistrate of First Class, Bhadrachalam recorded the statement of
victim girl (PW.9) under Section 164 Cr.P.C. (Ex.P6). While the investigation was in progress, on 24.11.2016 Head Constable No.713 and staff apprehended the accused No.1 at Yetapaka village of East Godavari
District, at his residence and produced before him. He effected the arrest of accused No.1 and got him remanded to the judicial custody along with a requisition to the court concerned with a request to refer the accused No.1 to potency test. On 23.01.2017, PW.15 and his staff apprehended the accused Nos.2 and 3 at Thummalanagar of Yetapaka Mandal of East
Godavari District and produced them before him. He effected the arrest of accused Nos.2 and 3 and got them remanded to the judicial custody after following the due procedure.
40.PW.18 in his evidence further stated that on 10.02.2017 he visited
Aadarshnagar, Hyderabad, where accused No.1 and victim girl lived there for some time, he secured the presence of mediators namely
B. Laxmikantha Reddy (PW.13) and Harishmali (PW.16), in their presence, he prepared CDF-II and drawn the rough sketch for the scene of offence in the relevant column of CDF-II, at Aadarshnagar, Hyderabad. After read over the contents of the Ex.P8-CDF-II, he obtained the signatures of the mediators on it. On the same day, he has examined and recorded the statements of U.Chandrashekar (LW.11), P. Rajashekar (LW.12) and
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PW.11. This part of testimony made by PW.18 is corroborated by the evidence of PW.13-B.Laxmikanth Reddy for preparing Ex.P8-CDF-II, but
PW.16 denied his presence at the time of preparing Ex.P8-CDF-II.
Therefore, the learned Special Public Prosecutor, declared PW.16 as hostile, subjected to cross examine him. But, PW.16 has identified his
Ex.P1-signature on CDF-II dated 10-02-2017. However, PW.13 supported the testimony of PW.8 with regard to preparing Ex.P8-CDF-II at the rented house of accused No.3 at Adarshnagar, Uppal, Hyderabad.
41. PW.18 in his evidence further stated that thereafter, he proceeded to
Jallepalli village of Ranga Reddy District, where, he secured the presence of mediators namely R.Ashok Kumar (PW.17) and Syed Riyaz (LW.19), in their presence, he prepared CDF-III (Ex.P13) and their observations were incorporated in it and drawn the rough sketch for the scene of offence in the relevant column of CDF-III and after read over its contents, obtained the signatures of the mediators on it. PW.17 -R. Ashok Kumar, who is said to be one of the mediators present at the time of preparing Ex.P13-CDF-III supported the testimony of PW.18 with regard to preparing Ex.P13 –CDF-III
dated 10-02-2017 at Jallepalli village of Ranga Reddy District.
42.As per the case of the prosecution, accused No.1 deceitfully induced the victim girl and taken away her from her parents at Pinapaka village on 15-08-2016, later reached to the house of accused No.3 at Adarshnagar,
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Uppal, Hyderabad with the active instigation of accused Nos.2 and 3, where accused No.1 stayed along with the victim girl in the house of accused No.3 till the evening of 21-11-2016, during the said period, accused No.1 participated in sexual intercourse with the victim girl repeatedly knowingly she is minor girl. The undisputed facts are that accused No.1 is the husband of the elder sister of victim girl by name P.
Sammakka (PW.3). P.Ws.1 and 2 are the parents-in-law of accused No.1.
The victim girl is younger sister-in-law of accused No.1. Accused No.2 is elder sister of accused No.1 and accused No.3 is the Junior Grandmother of accused No.1.
43.It is also an undisputed fact that the marriage of PW.3 was performed with accused No.1 in the yer 2012 and they lived together at the house of accused No.1 at Thummala Nagar village for a period of 3 months and thereafter they shifted their shelter to the house of parents of PW.3 and started staying along with the parents of PW.3. Out of wedlock, they were blessed with two children. Accused No.1 was eking out his livelihood by driving hire auto by staying in parents-in-law house (P.Ws.1 and 2) at
Pinapaka village. It is also undisputed fact that PW.9, who is the victim girl, was studying 10th class in the year 2015 at ZPHS, Pinapaka village and she wrote final examination of the 10th class in the month of March, 2016 at her examination center i.e. Bayyaram High School. Accused No.1 used to drop
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the victim girl at her examination center Bayyaram High school and used to pick up after the examination from Bayyaram High school to her house.
44.As per the prosecution, during the said period accused No.1 closely moved with the victim girl, taking the close acquaintance as advantage, he expressed his love proposal to her stating that he fallen in love with her and he would marry her and by believing his deceitful words, the victim girl also fallen in love with him. After completion of SSC examination during the summer season, accused No.1 participated in sexual intercourse with her in her house while the inmates temporarily absent from the house.
Thereafter, the elder sister of the victim girl (PW.3) suspected the movements of the accused no.1 with the victim girl and she picked up quarrel with accused No.1, then accused No.1 left the house and he return back to Pinapaka village on 14-08-2016 and later on 15-08-2016 evening he called the victim girl to Pinapaka center at about 6-00 P.M. The victim girl went to Pinapaka center along with her neighbor by name Yashoda (PW.5), where from the victim girl (PW.9) was taken away by accused No.1 with the assistance of his elder sister by name Verpula Divya (accused
No.2) in the auto by leaving PW.5 in the Pinapaka center.
45.PW.9, who is the victim girl, supported the aforesaid prosecution version in her evidence. P.Ws.1 and 2, who are the parents of the victim girl have no personal knowledge with regard to kidnapping the victim girl by
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accused No.1 from Pinapaka Center. But P.Ws.1 and 2 in their evidence categorically stated that the victim girl left their house on one day during evening, on the pretext of medical checkup at Pinapaka Government hospital and later she did not turn up to the house and they searched for the victim girl, but she was not traced out and they suspected that accused
No.1 might have been kidnapped the victim girl from the hospital. The aforesaid testimony made by P.Ws.1 and 2 is further corroborated by the evidence of P.W.3 with regard to suspecting accused No.1 might have been kidnapped the victim girl from the hospital.
46.PW.3 in her evidence further stated that he suspected that accused
No.1 took away her sister (PW.9) as he was closely moving with her.
Further P.Ws.1 to 3 in their evidence categorically stated that after three months the victim girl return back to their house and she narrated that accused No.1 forcibly took her away from the Pinapaka centre and later she reached the house of accused No.3 at Adarshnagar, Uppal, Hyderabad along with accused No.l1, where they stayed. Therefore, it can safely concluded that the victim girl (PW.9) was taken away by accused No.1 on 15-08-2016 from Pinapaka center in his auto.
47.PW.9 in her evidence further stated that she was taken by accused
No.1 to Mamidipally in a bus by keeping his auto in the bus stand and they stayed there for a period of 15 days by taking rental room, from there she
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was taken to the house of accused No.3 at Adarshnagar, Uppal,
Hyderabad. Accused No.1 had sexual intercourse with her during the aforesaid period. The only claim of the accused No.1 is that, there were disputes between him and PW.3 as such, he left Pinapaka village by leaving PW.3 at her parents house and as such there was no possibility of kidnapping PW.9 from her parents and taken her to the house of accused
No.3 and he never stayed in the house of accused No.3 along with the victim girl. The said stand taken by the accused No.1 was suggested to
PW.9 in her cross examination and the same was denied by PW.9 in her cross examination. But the aforesaid version of accused No.1 was neither suggested to his wife (PW.3) nor his parents-in-law (P.Ws.1 and 2).
48.Unlike any Indian Penal Code, the Special enactment of prevention of children from sexual offences Act, 2012, provides a special provision for presumption as to certain offences. Section 29 of the Protection of
Children from Sexual Offences Act, 2012 provides - “where a person is prosecuted for committing or abetting, or admitting to commit any offence under Sections, 3,5,7 and 9 of the Act, the Special Court shall presume that such person has committed the offence, unless the contrary is proved”.
“Sexual offences" are usually being committed secretly that too on children, there may not be any eye witnesses in such cases. Therefore, the
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Section 29 of the POCSO Act aiding prosecution in establishing its case by invoking the statutory presumption.
49.It is to be next seen whether the prosecution adduced any acceptable evidence beyond reasonable doubt with regard to the foundational facts constitute the guilt of the accused No.1 for the offence punishable under
Section 6 of the Protection of Children from Sexual Offences Act, 2012 and if so, whether accused No.1 has proved his innocence on the principle of preponderance of probability. The evidence of the victim girl that she was forcibly taken by accused No.1 from Pinapaka center in his auto by taking the assistance of accused No.2 and he kept the auto at the premises of bus stand and she was taken to Mamidipally in bus where they stayed for a period of 15 days in rental room and thereafter she was taken to the house of accused No.3 at Adarshnagar, Hyderabad and they lived in the house of accused No.3 for a period of one month. During the period she stayed with accused No.1 at Mamidipally and also in Uppal, Hyderabad, accused No.1 had sexual intercourse with her. Further, prior to the aforesaid incident, accused No.1 moved closely with her with his deceitful words that he fallen in love with her and would marry her and she believed the words of accused No.1 that he would look after her and also her elder sister (PW.3) and she participated in sexual intercourse with accused No.1 in her house at Pinapaka village.
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50.As seen from the evidence of PW.9, who is the victim girl, in her evidence narrated that accused No.1 participated sexual intercourse with her at Mamidipally village by taking rental room for a period of 15 days and thereafter in the house of accused No.3 at Uppal, Hyderabad for one month and also prior to her kidnap in her house at Pinapaka. She narrated the said version in her evidence, before her parents and elder sister (PWs.1 to
3) and also before the learned judicial magistrate who recorded her statement and also before P.Ws.7 and 10. Further, the victim i.e. PW.9 was subjected to medical examination through PW.14 who is the Lady
Medical Officer and after examination, she issued Ex.P9-Medical certificate in respect of PW.9 wherein she found external Genitalia well developed,
Vulva-healthy, vagina-admitting two fingers easily, her Hymen was not intact and she opined in Ex.P9-Medical certificate that the Hymen of the victim girl was not intact and she participated sexual intercourse.
Therefore, PW.14 in her evidence categorically stated that she issued
Ex.P9 medical certificate of PW.9 on examination stating that her Hymen was not intact, she participated in sexual intercourse.
51.So the medical evidence and the evidence of victim girl fully corroborated with the prosecution case from the evidence of P.Ws.1 to 4 and 9 and the documentary evidence put-forth by the prosecution, it can be safely concluded that the prosecution has succeeded in establishing the
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foundational facts beyond reasonable doubts and hence presumption under
Section 29 of the POCSO Act has arisen.
52.Further, when the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused No.1 and then accused No.1 had preferred the same either by discarding the evidence of prosecution witnesses through cross examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. The accused No.1 did not adduce any evidence to rebut the presumption except total denial of prosecution case. As such, the prosecution taking the shelter of Section 29 of the Protection of Children from Sexual Offences Act, apart from the evidence adduced by the prosecution through material witnesses.
53.As seen from the evidence of PW.9-the victim girl, she clearly stated that accused No.1 being her brother-in-law closely moved with her and participated in sexual intercourse with her in her house on the pretext of love and marriage and further she was kidnapped from Pinapaka center and stayed at Mamidipally village by taking rental room along with her for a period of 15 days and thereafter she was taken to the house of accused
No.3, stayed there for a period of one month and accused No.1 participated in sexual intercourse with her repeatedly during the aforesaid period. The case of the prosecution through reliable and trustworthy testimony of
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P.Ws.1 to 4, 9 and other witnesses is more probable than the alleged possibility of falsely implicating accused No.1 in this case. There are no material discrepancies which can create any kind of doubt over the case of the prosecution or over the case of any of the material witnesses.
54.The testimony of P.W.9 is quite reliable and I see absolutely no reason to disbelieve her testimony. The cross examination of victim girl on behalf of accused No.1 could not extract any material for her to speak false against accused No.1. Further, PW.9 is not a tutored witness, as such she is wholly reliable witness. Her solitary evidence is sufficient, which inspires confidence of the court as it is absolutely trustworthy, unblemished and of sterling quality. Further, the evidence of victim girl (P.W.9) is corroborated by the evidence of her parents (P.Ws.1, 2), her elder sister (PW.3) and cousin of PW.1 (PW.4).
55.Further, PW.11, who is the house owner of accused No.3, in his evidence stated that about 5 years ago, prior to 29-01-2021, he has seen accused No.1 along with one female in the house of accused No.3. When he asked accused No.1 about the female person with him, for which, he was informed by accused No.1 that she is his wife. Accused No.1 and the female person stayed in the house of accused No.3. The prosecution did not take any steps to call for the victim to be present in the court hall when
PW.11 was giving evidence before the court. If the victim girl was called to
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the court on the date when PW.11 was given evidence, he would have been identified the victim girl as the same person, whom accused No.1 taken to the house of accused No.3 and stayed along with her in the house of accused No.3. But the prosecution did not take steps for getting identification of PW.9 through PW.11, while he was giving evidence before the court.
56.It is contended on behalf of the accused No.1 that the parents of the victim girl had falsely implicated him in this case at the instigation of his wife-PW.3. The said contention of accused No.1 is not supported by any acceptable evidence. There is absolutely no reason as to why the parents of the victim girl has falsely implicated accused No.1 in this case, if accused
No.1 did not do any sexual assault on the victim girl. Further, the investigation conducted by PWs.15 and 18 have left no material lacunaes which can create any doubt over the case of the prosecution. Thus, there appears to be no possibility for investigating agency or the parents of the victim girl to develop the case against the accused No.1 at primary stage itself.
57.PW.1, who is the defacto complainant, lodged Ex.P1-report in the
P.S. Edulla Bayyaram, wherein she narrated that the victim girl left the house on 15-08-2016 during evening for medical check up to the
Government Hospital, Pinapaka and thereafter she did not turn up to the
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house and they searched for her, but she was not traced out and they suspected that accused No.1 might have been eloped the victim girl. As seen from Ex.P1-report lodged by PW.1, the mother of the victim girl only suspected that accused No.1 might have eloped the victim girl. In case the parents of the victim girl intended to implicate accused No.1 in a false case, the mother of the victim girl incorporated in Ex.P1 that accused No.1 kidnapped her daughter, but she did not incorporate such material in
Ex.P1-report. After returning the victim girl from the clutches of accused
No.1, she narrated what was happened against her in the hands of accused No.1 to her parents and then only P.Ws.1 to 3 in their evidence stated against accused No.1 before PW.18, who conducted major part of the investigation in this case. The cross examination of P.Ws.1 to 4, 9 and 11 could not extract any reason for making any such false statements against accused No.1. I see absolutely no reason to disbelieve the evidence of P.Ws.1 to 4, 9 and 11 and so also P.Ws.7, 8 and 10 as against accused No.1 as there is any amount of support from the medical evidence through the evidence of P.W.14 and her given Ex.P9 -medical certificate.
58.PW.9-victim girl in her evidence categorically stated that accused
No.1 has participated in sexual intercourse with her in her parents house and thereafter, she was taken to Mamidipally village and stayed for a period of 15 days in a rental room and also she was taken to the house of accused
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No.3 at Adarshnagar, Uppal, Hyderabad, there she stayed with accused
No.1 with a period of one month and during the aforesaid period, accused
No.1 participated in sexual intercourse with her at Mamidipally village and also at Uppal, Hyderabad repeatedly. On 21-11-2016, PW.9 returned back to her parents house from the house of accused No.1 at Thummala Nagar,
Bhadrachalam and she was produced before PW.18 at P.S. Edulla
Bayyaram and her statement was recorded by P.W.18 and she was referred to the Lady Medical Officer, Government Area Hospital,
Kothagudem with a request to examine the victim girl and issued a report.
Accordingly, on 23-11-2016, the Lady Medical Officer by name Dr.S.Sarala (PW.14) has examined the victim girl and issued Ex.P9-Medical certificate, wherein she opined that PW.9 participated in sexual intercourse. The evidence of PW.9 is corroborated by the evidence of her parents, elders sister and cousin of PW.1 (P.Ws.1 to 4), who are circumstantial witnesses and further, the evidence of P.Ws.1 to 4 and 9 is amply corroborated with the Medical evidence through PW.14 and her given Ex.P9-medical certificate.
59.As aforesaid, an ample support from the medical and ocular evidence is available in the instant case to the prosecution. There are no material discrepancies which can create any kind of doubt over the case of the prosecution. The testimony of P.W.9 is quite reliable and I see absolutely
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no reason to disbelieve her evidence. The cross examination of P.W.9 on behalf of accused No.1 could not extract any material for her to speak false against accused No.1.
60.“Rape” is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief,, denial and cover-up to “preserve the family reputation” are often then placed above the interests of the victim and her abuse (Reliance on the material on internet).
It is settled principle of law that courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation. The Hon’ble Supreme Court has made the
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above observations in the decision rendered in the State of A.P Vs.
Gangula Satyamurthy reported in J.T. 1996 (10) SC 550. All the safeguards as per the guidelines of the Hon’ble Supreme Court while recording the evidence of victim girl has been taken and their evidence had been recorded in camera.
61.The learned Special Public Prosecutor for the state has requested for convicting accused No.1 for having committed the offence punishable under Section 6 of the Protection of the Children from Sexual Offences Act, 2012, submitting that the prosecution has been able to bring home the charge levelled against accused No.1 by examining its witnesses, whose testimonies are corroborative and reliable. On the other hand, the learned counsel for accused No.1 has requested acquittal of accused No.1, submitting that there is nothing incriminating against accused No.1 on the record.
62.Accused No.1 claimed in his defence that he has been falsely implicated in this case on the ground that there was dispute between him and his wife (PW.3) and as such, his parents-in-law (P.Ws.1 and 2) falsely implicated in this case at the instigation of his wife (PW.3). Accused No.1 has not preferred to lead any evidence in his defence to substantiate his claim. Even the suggestions he has given to the victim was denied by her in cross examination. Therefore, the material available in the evidence of the
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victim girl indicates that accused No.1 putting up a false defence on an afterthought. The accused No.1 has only attempted unsuccessfully to mislead the Court. He also failed to show any motive or malafide intention on the part of the victim girl or her parents to implicate him in a false case.
The defence of accused No.1 does not appear to be probable. There is no dispute regarding the identity of the accused No.1. Accused No.1 is no other than the brother-in-law of the victim girl. It may be observed that the parties were known to each other even prior to the incident and therefore, there can be no question of doubt being raised with regard to the identity of accused No.1.
63.At this juncture, the learned Special Public Prosecutor has argued that the evidence of the victim girl does not suffer from any inconsistency and is blemish free, while the learned counsel for accused No.1 has argued that no reliance can be placed upon the evidence of the victim girl as there are so many variations. It may be observed here that it is a general handicap attached to all material witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden
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scales, but with cogent standards. In a particular case material/eye witnesses may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvass of his/her mind in the sequences in which it occurred. He/she may be a person whose capacity for absorption and retention of events is stronger then another person. It should be remembered that what he/she witnessed was not something that happens usually but a very exceptional one so far as he/she is concerned. If he/she reproduces it in the same sequences as it registered in his/her mind the testimony cannot be dubbed as artificial on that score alone. Similar observations have also been made by the Hon’ble
Supreme court in the decision referred in Bhag Singh and others Vs.
State of Punjab reported in 1997-VII AD SC 507.
64.When an eye witness is examined at length, it is quite possible for him/her to make some discrepancies. No true witnesses can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in evidence of victim girl are so incompatible with the credibility of her version that the court is justified in discarding her evidence.
However, I find that the victim girl (PW.9) is in her evidence before the court as well as her statement before the police concerned under Section 161
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Cr.P.C and also her statement recorded by PW.10 in the presence of Pw.7 and her statement recorded by Judicial Magistrate concerned under
Section 164 Cr.P.C., are consistent with regard the manner of accused
No.1 committing sexual intercourse with the victim girl repeatedly.
65.It is settled principle of law that criminal trial conviction can be based even on the strength of the deposition of a single witness, in case it is found trustworthy and reliable as it is quality and not quantity of the evidence that count and the said view is strengthened by the decision of our Hon’ble
Supreme Court rendered in Sheelam Ramesh and another Vs. State of
A.P reported in J.T. 1999 (8) SC 537, wherein it was observed that,
courts are concerned with quality and not with quantity of evidence
and in a criminal trial, conviction can be based on the sole evidence
of a witness if it inspires confidence. There is nothing on record to indicate that the evidence of PW.9 is false or motivated. Her evidence appears to be completely reliable and trustworthy.
66.The manner in which, the events have unfolded and the surrounding circumstances reflect truthful character of the deposition made by P.W.9.
In the judgment reported as State of Himachal Pradesh Vs. Lekhraj and another , J.T 1999 (9) SC 43, it was observed by the Hon’ble Supreme
Court that in the depositions of the witnesses there are always normal
discrepancy, however, honest and truthful they may be. Such
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discrepancies are due to normal errors of observation, normal errors
of memory due to lapse of time, due to mental disposition such as
shock and horror at the time of occurrence, and the like.
67.It is also settled principle of law that every discrepancy in the witness statement cannot be treated as fatal to the prosecution case. The discrepancy which does not affect the prosecution case materially, does not create infirmity.As far as minor inconsistencies or improvements are concerned in the evidence of victim girl or her parents and elder sister (P.Ws.1 to 3) were comparatively of minor character and do not go to the root of the prosecution story, they need not be given undue importance.
Mere congruity or consistency is not the sole test of truth in the depositions.
It is already stated supra that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be.
Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Therefore, there is no reason to throw out the testimony of material witnesses.
68.The investigation conducted including the documents prepared in the present case has been substantially proved by the Investigation Officers
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(P.Ws.15 and 18). They have clearly deposed that they have examined and recorded the Statements of the witnesses and further, instructed the
Woman Head Constable (PW.10) to record the statements of the victim by taking the presence of ICDS worker (PW.7) and vidoegrapher (PW.8).
Accordingly, PW.7 went to the residence of the victim girl at Pinapaka village and she recorded the statement of the victim girl in the presence of her mother, PW.7 and she was provided videographer by name Gajula
Sravan Kumar (PW.8) at the time of recording the statement of victim girl.
The said proceedings were videographed by P.W.8. The said video was downloaded in the pen drive and made it as CD (Ex.P5) and handed over the same to the police concerned. Further, Crime Details Forms for the three scenes (Exs.P7, P8 and P13) were prepared by securing the presence of mediators and arrested accsued No.1 and later and got recorded the statement of the victim girl under Section 164 Cr.P.C through the Judicial Magistrate.
69.Further, the first Investigation Officer (PW.15) after recording the statement of the victim girl, altered the Section of Law by adding Sections 366-A, 376(2) r/w. 109 of I.P.C and and Sections 6 and 17 of Protection of
Children from Sexual Offences Act, 2012 and also added accused Nos.2 and 3 and issued Ex.P11-Alteration Memo to that effect. Further, PW.8 obtained study and conduct certificate of PW.9 from PW.6. PW.18 referred
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the victim girl for medical examination and they arrested accused No.1, he was also referred for potency test. PW.18 collected medical reports of the victim girl and accused No.1 from the Medial officers and after completion of investigation, he filed a charge sheet against accused No.1 to 3.
70.There is nothing on record to show that the testimony of P.Ws.15 and 18 are false or not reliable. It is evident that the evidence of victim girl is reliable, truthful and trustworthy and prosecution has established the case against accused No.1 for the offence punishable under Section 6 of the
Protection of Children from Sexual Offences Act. The facts of the case are consistent with hypothesis of sexual acts of accused No.1. There is nothing on record which can shatter the veracity of the prosecution witnesses are falsified the claim of the prosecution. The material witnesses of the prosecution have supported the prosecution case and their testimony do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by the circumstantial evidence and the witnesses of the prosecution have been able to build up a continuous link. In view of the foregoing reasons, conscience of this Court is completely satisfied with the prosecution has been able to successfully bring home the charge levelled against accused No.1, for the offence
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punishable under Section 6 of Protection of Children from Sexual Offences
Act.
71.It is already stated supra that there is corroboration to the testimony of victim girl with regard to accused No.1 kidnapping the victim girl lonely and participated in sexual intercourse with her. On this aspect, our Hon’ble
Supreme Court laid down law in Karthik Malhar vs State of Bihar reported in 1996 (1) ALD (Crl.) 73 (SC), wherein it was held that:- “conviction can be based on the evidence of solitary witness provided that the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eye witness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eye-witnesses.” 72.The evidence of P.W.9 itself is sufficient to prove the case of the prosecution in respect of Section 6 of POCSO Act against accused No.1, but there is additional evidence of her parents and her elder sister (P.Ws.1 to 3). The Hon’ble Supreme Court observed that courts are expected to show great responsibility while trying an accused on charge of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of fatal nature to throw out allegations of rape.
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73.It is apparently clear from the above that the allegations are specific and consistent. There is reason why accused No.1 would have been falsely implicated in this case. No possible explanation is forth-coming on behalf of accused No.1 as to why the victim girl and her parents would falsely implicate him in this case. The explanation of the accused No.1 during the course of cross examination of victim girl is highly improbable.
No person would expose his children to this kind of allegation only due to matrimonial disputes between accused No.1 and their elder daughter.
74.It has been argued that the victim girl had made false allegations of sexual assault against accused No.1, since there was sufficient opportunities for her to have raised the alarm as there number of persons are passing at Pinapaka Center and the testimony of the victim girl cannot be relied upon. It may be observed in this regard, the victim girl has explained the circumstances and specifically deposed that accused No.1 closed her mouth with one hand and drove the auto with another hand, the manner in which the events have unfolded and the surrounding circumstances reflecting truthful character of the victim girl. In India, the woman has tendency to conceive such sexual offences because it involves their prestige as well as prestige of their family. Only in few cases, the victim girls or the family members of the victim have carried to go before the Police station and lodge a report. There was no apparent reason for
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the parents of the victim girl to falsely implicate accused No.1 after taking their own prestige and honour.
75.It is settled principle of law that the courts must, while evaluating the evidence, remain alive to the fact that in a case of rape, no self respecting woman/girl would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases of involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the victim should not, unless the discrepancies are such which are of fatal in nature, be allowed to throw out an otherwise reliable prosecution case.
76.The conduct of accused No.1 closely moved with the victim girl in her house and participated sexual intercourse with her on the pretext of love and marriage and thereafter she was taken to Mamidipally village and participated in sexual intercourse with her for a period of 15 days by taking rental room and thereafter she was taken to the house of accused No.3, who is her junior grandmother, where he participated in sexual intercourse with the victim girl repeatedly for a period of one month deposed by the victim girl (PW.9) is undoubtedly show the intention and evil plan of the accused No.1 as the aforesaid act of accused No.1 constitute the offence punishable under Section 6 of the Protection of Children under from Sexual
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Offences Act, 2012. Having considered the nature and circumstances of the case, irrespective of minor discrepancies, I am holding that accused
No.1 committed penetrative sexual assault on the victim girl (PW.9) repeatedly as such accused No.1 is liable for punishment for the offence punishable under Section POCSO Act, 2012.
77.As far as the charge under Section 376(2) of I.P.C against accused
No.1 is concerned, as per the prosecution, accused No.1 repeatedly committed sexual assault on the victim girl. Section 375 of IPC defines rape as follows:- “A man is said to commit “rape” if he (a) penetrates his penis to any extent into vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person, or
(b) inserts to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of the woman so as to cause penetration into the vagina, urethra, anus or any part of body of the woman or makes her to do so with him or any other person.
78.The above definition under Section 375 of I.P.C. in respect of “rape” which is similar to the definition of sexual assault under POCSO Act. It is already analysed the evidence of the victim girl (P.W.9) in detailed manner
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as stated above and so also the evidence of her parents and her elder sister (P.Ws.1 to 3) and other circumstantial witnesses. PW.9 in her evidence categorically stated that accused No.1 participated in sexual intercourse with her at her house, Mamidipally village by taking rented house for a period of 15 days and in the house of accused No.3 at Uppal,
Hyderabad for a period of one month. On analysing the entire evidence available on record, which is the evidence of PW.9 is rightly corroborated by the evidence of other witnesses. The prosecution proved the charge levelled against the accused No.1 for the offence punishable under Section 376(2) of IPC beyond all reasonable doubt. It has been proved by the prosecution through cogent evidence that accused No.1 participated sexual intercourse with the victim girl and as such he committed the offence of rape as defined under Section 375 of IPC.
79.Section 344 of IPC says that- “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. In the instant case, accused No.1 kidnapped the victim girl from her parents on 15-08-2016 and the victim girl was taken to
Mamidipally village where he stayed along with her for a period of 15 days and thereafter she was taken to her Junior Grandmother’s house (accused
No.3) where he stayed along with the victim girl for a period of one/two
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months and he returned back to his village Thummala Nagar,
Bhadrachalam on 21-09-2016 and from there he sent the victim girl to her parents house. Therefore accused No.1 confined the victim girl for a period of more than three months. Therefore, accused No.1 is liable for punishment for the offence punishable under Section 344 of I.P.C.
80.Further Section 366-A of IPC, which reads as follows:- “Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine”.
81. Section 366 of I.P.C, is an aggravated form of the offence under
Section 366 of I.P.C. For proving the offence under Section 366 of I.P.C, it must be proved by the prosecution that the girl may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. But for proving the offence under Section 366-A of IPC, the prosecution has to prove that the girl was kidnapped with the intention that she will be forced or seduced to illicit intercourse with another person. In the present case, PW.9-victim girl has been kidnapped by accused No.1 for having illicit intercourse by the accused No.1 himself and not others. Hence, the ingredients of Section 366 of I.P.C are very
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much found in the facts of the present case and not of the offence under
Section 366-A of IPC. Section 366 of I.P.C is less grave in nature than
Section 366-A of I.P.C and therefore, no charge required is to be framed against accused No.1 for the offence punishable under Section 366 of IPC, which is less grave in nature than Section 366-A of IPC which was already charged. Therefore, accused No.1 is liable for punishment for the offence punishable under Section 366 of IPC.
82.As far as charges levelled against accused Nos.2 and 3 are concerned, even though the prosecution claimed that accused No.2 assisted accused No.1 in kidnapping minor girl from Pinapaka to
Mamidipally village and from there to the house of accused No.3 at Uppal,
Hyderabad, but none of the witnesses in their evidence before the Court stated the role of accused No.2 in commission of offence. Therefore, the charge levelled against accused No.2 was not established by the prosecution through any reliable testimony. Further, the role of accused
No.3 is concerned, PW.9 in her evidence stated that accused No.3 allowed accused No.1 along with her in her house, where accused No.1 stayed for a period of one month along with her in the said house. The aforesaid testimony made by PW.9 that the accused No.3 allowed them into their house for staying and neither PW.9 nor any other witnesses stated nothing
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against accused No.3. Accused No.3 might have allowed accused No.1 along with the victim girl in her house due to her ignorance.
83.The Latin Maxim Ignorantia Juris Leminem Excusat means “ignorance of law is no excuse for breaking it”. This is one of the cardinal principles of jurisprudence. The rationale behind this principle is that if ignorance was an excuse, a person charged with criminal offence or involved in a civil suit would merely claim that he was unaware of the law in question in order avoid liability, even if he actually knew what the law in question was. However, it is impossible, even for someone holding graduation, post-graduation or even a doctoral degree in law, to be aware of each and every legal provision in operation. We have so many forms of laws- civil, criminal, revenue, personal, family, taxation, international, to name a few – but it is well settled that ignorance of any law cannot become an excuse for breaking it. Nobody is permitted to plead ignorance as a defence to escape the rigorous of law. If it were, it would be very easy for any person to take the plea of ignorance though he was actually aware of the law and its consequences. The defence of ignorance is based on negative facts, which is very difficult to prove as one has to study the mental position of the law-breaker which is really a difficult exercise.
84.Now in our country thousands of laws are enacted by Parliament and state legislatures. Rules are also framed by the Executive under various
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Acts. The Hon’ble Supreme Court and Hon’ble High Courts in the country framed rules of their respective procedures. Besides these rules, various notifications and circulars are also issued under relevant legislation. This assumes that the law in question has been properly promulgated, published in government gazettes and distributed amongst the public for generating awareness. The distribution may be in the form of its availability in newspaper or on TV or on the internet, or printed in volumes available for sale to the public at an affordable price. To obtain the binding force of a particular law, it must be applied to the men who are ruled by it. This is done by promulgating the law so that the people who are affected by it can acquire knowledge about it.
85.Further, the Hon’ble Supreme Court of India has recently weakened the maxim that ignorance of law is no excuse in “Drug Inspector Vs. Mani
Maran (Crl.App.No.1493 of 2018) decided on November 30, 2018.
Protection of Children From Sexual Offences Act, 2012 came into force on 14-11-2012. But there is no proper awareness among the public in respect of the provisions in it. Accused No.3 might have allowed the victim girl to stay in her house with regard to non-awareness of provisions of this new enactment. However, there is no acceptable evidence on record to establish the charges levelled against accused Nos.2 and 3. Therefore,
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accused Nos.2 and 3 are liable to be acquitted for the charges levelled against them.
86.From the foregoing reasons, I am holding that the prosecution is successful in bringing home the guilt of accused No.1 under Section of 6 of the Protection of Children From Sexual Offences Act, 2012, Section 376(2), 366, 344 of IPC and and the prosecution failed to establish the charges levelled against accused Nos.2 and 3 for the offences punishable under
Sections 366-A, 344 r/w. 34 of I.P.C. and Section 17 of the Protection of
Children From Sexual Offences Act, 2012. Further, accused No.1 is charged for substantial offences both under the I.P.C and Special enactment under Protection of Children From Sexual Offences Act, 2012.
In the event when accused No.1 found guilty for the offence, punishable under provisions of Indian Penal Code as well as under the Special enactment of POCSO Act, 2012 for the same criminal Acts. Section 42 of the POCSO Act provides for alternative punishment which indicate. That if an offender is found guilty for the offence punishable under this Special enactment and also under provisions of Indian Penal Code, the offender shall be liable to punishable only under this Special enactment or provisions of I.P.C, which provides a greater punishment. It is already stated supra that accused No.1 is liable for punishment for the offences punishable under Section 376(2) of I.P.C and also Section 6 of the
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POCSO Act, 2012, for the very same criminal acts as the punishment awarded in the Special enactment of POCSO, 2012 is greater than the provisions of I.P.C. Accused No.1 shall be liable for punishment only under
Section 6 of Protection of Children From Sexual Offences Act, 2012 instead of Section 376 (2) of I.P.C. Accordingly, these points are answered.
RESULT:
In the result, accused No.1 is found guilty for the offences punishable under Sections 344, 366, 376(2) of I.P.C and Section 6 of the Protection of
Children From Sexual Offences Act, 2012 and and accordingly he is convicted under Section 235(2) Cr.P.C for the said offences.
Accused Nos.2 and 3 are found not guilty for the offences punishable under Sections 366-A, 344 r/w. 34 of I.P.C. and Section 17 of the Protection of Children From Sexual Offences Act, 2012 and they are acquitted under
Section 235(1) Cr.P.C, for the said offences. The bail bonds of the accused
Nos.2 and 3 shall be in force for a period of six months from this date.
Dictated to the Stenographer, Grade-II, transcribed by her, corrected
and pronounced by me in open Court on this, the 31st day of March, 2022.
. V ADDITIONAL SESSIONS JUDGE,
KOTHAGUDEM,
FAC, FAST TRACK SESSIONS JUDGE
FOR EXPEDITIOUS DISPOSAL OF CASES
Page No. 70 of 76 SSC.No.66 of 2017, Dt.31.03.2022.
OF RAPE AND PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES (POCSO)
ACT AT KOTHAGUDEM.
Order of Sentence/Quantum of sentence: Dt.31-03-2022:
It is not the case where invoke the provisions of Probation of
Offenders Act or Section 360 of Cr.P.C. When accused No.1 is questioned with regard to quantum of sentence to be awarded on him, Accused No.1 represented that he is having two children and he has to look after them and pleaded mercy of the Court.
Heard the arguments of learned Special Public Prosecutor and also the learned counsel for the accused No.1.
The offence proved against accused No.1 is sexual assault against the victim girl (PW.9), who was aged 16 years at the time of commission of offence and she completed her 10th class and further it is heinous crime and dark reality in the Indian Society like in any other nation and required to be dealt by awarding suitable punishment. Therefore, showing mercy against accused No.1 is unwarranted.
Further, Section 42 of the POCSO Act-2012 provides for alternative punishment, which indicates that if an offender is found guilty for the offence punishable under this special enactment of POCSO and under the provisions of Indian Penal Code, the offender shall be liable for
Page No. 71 of 76 SSC.No.66 of 2017, Dt.31.03.2022.
punishment only under the provisions of this special enactment of POCSO
Act or the provisions of Indian Penal Code, which provides for greater punishment. Further, the offences proved against accused No.1 are
Sections 376 (2) of IPC and Section 6 of the Protection of Children From
Sexual Offences Act, 2012 for the same criminal Act done by accused No.1 besides Sections 344 and 366 of IPC, but the punishment provided in
Section 376(2) of IPC and Section 6 of POCSO Act are similar. In these circumstances, I intent to punish the accused No.1 under the provisions of special enactment i.e. Section 6 of POCSO Act instead of Section 376(2) of
I.P.C besides Sections 344 and 366 of IPC.
Having considered the nature and circumstances of the case and representation of accused No.1, I have passed the following sentence.
Thus, accused No.1 is sentenced to undergo RIGOROUS
IMPRISONMENT for a period of Twenty (20) years and shall pay fine of
Rs.10,000/- (Rupees Ten thousand only), in default of payment of fine, he shall further undergo Simple Imprisonment for a period of Six (6) months for the offence punishable under Section 6 of Protection of Children from
Sexual Offences Act, 2012. Accused No.1 is further sentenced to undergo
Rigorous Imprisonment for a period of Five (5) years and shall pay fine of Rs.5,000/- (Rupees five thousand only), in default of payment of fine, he shall further undergo Simple imprisonment for a period of Three (3)
Page No. 72 of 76 SSC.No.66 of 2017, Dt.31.03.2022.
months for the offence punishable under Section 366 of IPC. Accused
No.1 is further sentenced to undergo Rigorous Imprisonment for a period of One (1) Year and shall pay fine of Rs.1,000/- (Rupees one thousand only), in default of payment of fine, he shall further undergo Simple
Imprisonment for a period of One (1) month for the offence punishable under Section 344 of I.P.C. The above substantial sentences passed against accused No.1 shall run concurrently. The total fine amount is that of
Rs.16,000/- (Rupees Sixteen thousand only).
The remand period underwent by Accused No.1 from 24-11-2016 to 02-02-2017, from 01-11-2018 to 20-11-2018, from 28-11-2019 to 01-07-2021 and from 08-09-2021 till date i.e. 31-03-2022 shall be set off as against the term of imprisonment as per Section 428 of Cr.P.C. The unmarked case property, if any shall be destroyed after expiry of appeal time.
The accused No.1 is informed the appeal provision and also facility of the Legal Aid for filing an appeal against the conviction and sentence passed by this Court.
Dictated to the Stenographer, Grade-II, transcribed by her, corrected
and pronounced by me in open Court on this, the 31st day of March, 2022.
V ADDITIONAL SESSIONS JUDGE,
KOTHAGUDEM,
FAC, FAST TRACK SESSIONS JUDGE
FOR EXPEDITIOUS DISPOSAL OF CASES
Page No. 73 of 76 SSC.No.66 of 2017, Dt.31.03.2022.
OF RAPE AND PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES (POCSO)
ACT AT KOTHAGUDEM.
-APPENDIX OF EVIDENCE-
WITNESSES EXAMINED FOR PROSECUTION
P.W.1:Kondru SusheelaDefacto complainant and mother of the victim girl.
P.W.2:Kondru VeeraiahFather of the victim girl and circumstantial witness
P.W.3:Perla SammakkaElder sister of the victim girl and circumstantial witness
P.W.4:Kondru Ramana Cousin of PW.1 and circumstantial witness.
P.W.5:Piryala YashodaNeighbour of victim girl and eye witness
P.W.6:Badavath Rama Chandar, Headmaster who issued study and Headmaster of ZPHS, conduct certificate of the victim girl. Pinapaka
P.W.7:Nakka Vijaya Kumari, ICDS Circumstantial witness worker
P.W.8:Gajula Sravan KumarVideographer, who videographed the statement of victim.
P.W.9:---Victim Girl
P.W.10: B.Shanthi, Woman Head Recorded the statement of PW.9 Constable-51
P.W.11: Bheem Kumarwho is the owner of the rented house of accused No.3 of
Page No. 74 of 76 SSC.No.66 of 2017, Dt.31.03.2022.
Adharshnagar,Hyderabad/ Circumstantial witness.
P.W.12: Gottumukku Swathantra Mediator for 1st CDF. Reddy
P.W.13Butta Laxmikantha ReddyMediator for 2nd CDF.
P.W.14Dr.SaralaLady Medical Officer, who examined the victim girl and issued Medical certificate.
P.W.15: E. Ratish, the then Sub-Registered the crime and issued Inspector of Police, P.S. EdullaFIR and 1st Investigation Officer. Bayyaram
P.W.16: HarishmaliMediator for 2nd CDF.
P.W.17: Rapolu Ashok KumarMediator for 3rd CDF.
P.W.18: B.Ashok Kumar, the then Sub-2nd Investigation Officer – Filed Divisional Police Officer, charge sheet. Manuguru
WITNESS EXAMINED OF BEHALF OF THE DEFENCE
-NONE-
EXHIBITS MARKED FOR PROSECUTION
Ex.P1:Report dated 15-09-2016 lodged by P.W.1 to the Police concerned.
Ex.P2:Section 161 Cr.P.C. statement of PW.5 recorded by PW.15 - Sub-Inspector of Police, P.S. Edulla Bayyaram.
Ex.P3: Section 161 Cr.P.C. statement of PW.5 recorded by PW.18- Sub-Divisional Police Officer, Manuguru.
Page No. 75 of 76 SSC.No.66 of 2017, Dt.31.03.2022.
Ex.P4 Study and conduct certificate of the victim girl (PW.9) issued by PW.6.
Ex.P5:Compact Disc.
Ex.P6:Section 164 Cr.P.C Statement of PW.9.
Ex.P7:Crime Details Form-I dated 15-09-2016.
Ex.P8:Crime Details Form-II dated 10-02-2016.
Ex.P9:Medical Certificate of the victim girl dated 23-11-2016 issued by PW.14
Ex.P10:First Information Report issued by PW.15.
Ex.P11: Section alteration Memo issued by PW.15.
Ex.P12:Signature of PW.16 on CDF-II dated 10-02-2017
Ex.P13:Signature of PW.17 on CDF-III dated 10-02-2017.
EXHIBITS MARKED FOR DEFENCE
--Nil--
MATERIAL OBJECTS MARKED
--Nil--
V ADDITIONAL SESSIONS JUDGE,
KOTHAGUDEM,
FAC, FAST TRACK SESSIONS JUDGE
FOR EXPEDITIOUS DISPOSAL OF CASES
OF RAPE AND PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES (POCSO)
ACT AT KOTHAGUDEM.
Page No. 76 of 76 SSC.No.66 of 2017, Dt.31.03.2022.
Compared by: