Spl.SC 111 of 2022
IN THE COURT OF THE FAST TRACK SESSIONS JUDGE FOR EXPEDITIOUS
DISPOSAL OF CASES OF RAPE AND PROTECTION OF CHILD AGAINST
SEXUAL OFFENCES (POCSO) ACT :: AT MULUGU
Present: Smt. P.V.P. Lalitha Siva Jyothi,
Principal District and Sessions Judge, Mulugu,
FAC Fast Track Sessions Judge for Expeditious disposal of cases of Rape and Protection of child against sexual offences (POCSO) Act, Mulugu.
Tuesday, the day 30th of January, 2024
SPL. SESSIONS CASE NO. 111 OF 2022
(Old Spl.S.C.No. 159 of 2021 on the file of Fast Track Sessions Judge for Expeditious disposal of cases of Rape and Protection of child against sexual offences (POCSO) Act, Warangal.)
Crime Number and Police Station:Cr.No. 169 of 2020 of Police Station: Mangapet.
Name and description of the Accused:MandalaHarshavardhan,S/o. Dharmaraju, age 21 years, SC Mala, Coolie, R/o. Ramanakkapet village of Mangapet mandal.
Name and description of the :The State of Telangana, represented Complainantby Sub-Inspector of Police, Mangapet.
Prosecution conducted by :Sri Ch.Satyanarayana,
Additional Public Prosecutor.
Accused defended by:Sri Ch. Vijaya Rao, Advocate, Mulugu.
U/s. 354-A IPC and Section 11 r/w 12 Offences charged: of Protection of Children from Sexual offences (POCSO) Act, 2012.
Plea of the Accused:Pleaded not guilty and claimed to be tried.
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Spl.SC 111 of 2022
Found guilty. Finding of the Court:
In the result, the accused is found Result: guilty for the offences punishable U/s.354-A IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act, 2012 and accordingly he is convicted as per the provisions of 235(2) CrPC.
Heard the accused with regard to the quantum of sentence. Heard the learned counsel for the accused and learned A.P.P. The counsel for the accused submits that the accused is a poor person and prays to take a lenient view and prays to impose only fine amount. The learned A.P.P. submits that it is not a fit case to take a lenient view as the offence is grave in nature and prays to award some compensation amount to the victim girl/Pw.1.
Taking into consideration the plea of accused, nature of offence, age of victim girl, gravity, heinous nature of the offence, this court considered that it is not a fit case to take a lenient view in awarding sentence against accused or to apply the provisions of Probation of Offenders Act or Section 360 Cr.P.C to Accused.
Hence,theaccusedis sentenced to under to Rigorous Imprisonment for a period of One year for the offence punishable U/sec.354-A I.P.C and he shall pay fine 2/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 amount of Rs.5,000/- (Rupees five thousand only), and in default of payment of fine amount, he shall under go simple imprisonment for a period of (01) one month.
The accused further sentenced to undergo Rigorous Imprisonment for a period of three years for the offence punishable under section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act-2012 and he shall pay fine amount of Rs.5000/- (Rupees five thousand only) and in default of payment of fine amount, he shall under go simple imprisonment for a period of (02) two months. Total fine amount is Rs.10,000/-( Rupees Ten thousand only). The remand period already undergone by the Accused from 05.11.2020 to 04.12.2020 shall be set off as per the provisions of 428 Cr.P.C. All the sentences shall run concurrently. Out of the fine amount, if realized, an amount of Rs.8,000/- (Rupees eight thousand only) shall be paid to the Pw.1/victim girl towards compensation as per the provisions of section 357 (3) Cr.P.C. As the accused is found guilty for the offences punishable under section 11 r/w sec. 12 of POCSO Act,2012, this court is of the considered opinion that the victim girl/Pw.1 has to be compensated for her mental suffering and as such, an amount of Rs.10,000/- (Rupees Ten thousand only) is decided as compensation amount. Therefore, the Secretary, District Legal Services 3/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
Authority is directed to take steps for payment of said compensation of Rs.10,000/- to the victim girl/Pw.1 at the earliest.
The accused is appraised about his right to prefer an appeal before the Hon’ble High Court and he is further informed that he will be provided Legal Aid Counsel, if required.
The office is directed to furnish free copy of the Judgment to the accused as mandated under section 363 Cr.P.C to enable him to prefer an appeal.
This case coming before me on 25.01.2024 for final hearing in the presence ofSri Ch.Satyanarayana, Addl. Public Prosecutor for the Complainant/State and Sri Ch. Vijaya Rao, Advocate for the accused; upon perusing the material papers on record, having been heard and having stood over for consideration till this day, this Court delivered the following:
:: JUDGMENT ::
1.The Sub-Inspector of Police, P.S. Mangapet has filed charge-sheet against accused in crime No.169 of 2020 of PS Mangapet for the offences punishable
U/s.354 IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act, 2012.
2.The case of the prosecution against the accused, in brief, is as follows:
On 26.10.2020 at 1000 hours, the defacto complainant/victim girl/Lw.1 resident of Mangapet mandal came to the police station and lodged a complaint 4/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 stating that on 25.10.2020 at about 1730 hours, she went to Crop canal, situated behind her house to attend nature calls and on noticing the same, her villager
Mandala Harshavardhan/Accused came to her, caught hold and dragged her hand and frightened her saying that if she does not fulfill his lust, he will tell bad words against her to her father and damage her image and she tried to escape from the clutches of the said Harshavardhan and raised hues and cries and tried to make call to her father with her mobile phone, the said person also forcibly dragged her cell phone. But, on receiving call from her father, she narrated the same. On noticing coming of her father, mother, and younger father Ramesh, the accused fled away from there by leaving her and she requested to take action against the accused as per law and to do justice. On the above complaint, Lw.11/Sub-Inspector of Police, Mangapet has registered a case in
Crime No. 169/2020 U/sec. 354 IPC, Section 11 r/w Sec. 12 of POCSO Act, issued
FIR to all concerned and took up the investigation and during the course of investigation, Lw.11/Sub-Inspector of Police, Mangapet summoned Woman
Police Constable-4573/Lw.2 and she has examined and recorded the statement of Lw.1/defacto complainant/victim girl in the Police Station, Mangapet under videography with the help of Lw.3 and later Lw.11/Sub-Inspector of Police,
Mangapet secured the Lws. 2 to 4 and examined them and recorded their statements and visited the scene of offence where he secured the presence of
Lw.5/mother of victim girl and Lw.6/Younger father of victim girl and examined them and recorded their statements and also secured the presence of panch witnesses Lws. 8/M. Anjibabu and Lw.9/Ch. Rama Rao, observed the scene in 5/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 their presence, entered the details of scene in crime detail form and made efforts to apprehend the accused, but in vain. Lw.11/Sub-Inspector of Police,
Mangapet obtained date of birth certificate of victim girl from Lw.7 as she was aged about 15 years and on 05.11.2020, on reliable information Lw.11/Sub-
Inspector Mangapet rushed to Ramanakkapet village Mangapet mandal and apprehended the accused at his house at 0900 hours and on interrogation the accused voluntarily confessed to have committed this offence and brought him to police station at 1030 hours, affected his arrest as per law and produced
before the Judicial First Class Magistrate, Mulugu for judicial remand. On
06.11.2020, Lw.11/Sub-Inspector of Police, Mangapet prepared a requisition and filed it before Chief Judicial Magistrate, Warangal for recording Section 164
Cr.P.C statement of the victim girl and accordingly, the Spl. JFCM-Prohibition and Excise Cases, Warangal Lw.10 recorded the statement of Lw.1 under section 164 Cr.P.C. Subsequently, on 25.05.2021 on transfer, the Lw.12/Sub-Inspector of
Police, Mangapet have taken over the CD file from Lw.11/Sub-Inspector of Police,
Mangapet for further investigation and after completion of investigation, the
Investigating Officer filed charge-sheet for the offences punishable U/s.354 IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO)
Act, 2012 against the accused. Hence, the charge sheet.
3. This case was taken cognizance by the learned I-Addl. District and
Sessions Judge, Warangal for the offences punishable U/s.354-A IPC and
Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act against the accused and numbered the case as Spl.SC.No. 159/2021.
6/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
4.As per the proceedings of the Hon'ble Principal District Court, Warangal communicated in Dis.No.7283, dated 20.12.2021, this case was withdrawn from the learned I-Addl. District Judge's Court, Warangal and transferred to the Fast
Track Special Court for Expeditious Trial and disposal of Rape and POCSO Act
Cases, Warangal.
5.Subsequently, as per the orders of the Hon’ble High Court for the State of
Telangana, Hyderabad vide ROC No.346/E1/2021, dated 01.06.2022 and in view of the establishment of 33 New Judicial Districts and in view of the establishment of Principal District and Sessions Court at Mulugu, this case was transferred to this Court on the point jurisdiction for disposal in accordance with law and thereafter, this case is made over to the Fast Track Sessions Judge for
Expeditious disposal of cases of Rape and Protection of child against sexual offences (POCSO) Act, Mulugu and the same is renumbered as Spl. S.C.No.111 of 2022 and made over to Fast Track Sessions Judge for Expeditious disposal of cases of Rape and Protection of child against sexual offences (POCSO) Act,
Mulugu.
6. On appearance of the accused before this Court, all the copies of documents were furnished to him as contemplated under Section 207 CrPC.
7. On appearance of the accused before this Court, heard the accused, learned counsel for the accused and learned APP under Section 226 CrPC and on considering the material on record and as per Section 228 CrPC, the charges
U/s. 354-A IPC and Section 11 r/w 12 of Protection of Children from Sexual 7/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 offences (POCSO) Act, 2012 are framed against the accused and the same have been read over and explained to the accused in his vernacular language, for which he denied and pleaded not guilty and claimed to be tried.
8. During the course of trial, the prosecution examined 08- witnesses out of 12 listed witnesses and got marked Exs.P1 to P6 and the details of which are mentioned in the appendix of evidence.
9. After closure of the prosecution evidence, the accused was examined
U/sec. 313 Cr.P.C on the incriminating evidence available against him in the evidence of prosecution witnesses and he denied the same and reported no evidence on his behalf.
10. Heard the arguments of Sri Ch.Satyanarayana, learned Addl. Public
Prosecutor, representing the State and Sri Ch. Vijaya Rao, the learned counsel for the accused.
11. The point that arises for determination is:
“Whether the prosecution has brought home the guilt of the accused for the offences punishable U/s. 354-A IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act, 2012 beyond all reasonable doubt ?”
POINT:
12. To establish the charges U/s. 354-A IPC and Section 11 r/w 12 of
Protection of Children from Sexual offences (POCSO) Act, 2012 against the 8/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 accused, the prosecution has to establish that the accused on 25.10.2020 in the evening at about 17.30 hours, at Ramanakkapet village, Mangapet mandal caught hold the victim minor girl/Pw.1 and dragged her hand and frightened her by saying that if she does not fulfill his lust, he will tell bad words against her to her father and damage her image and demanded victim girl/Pw.1 for sexual favour and assaulted or used criminal force on Pw.1/victim minor girl, intending to outrage or knowing it to be likely that he will there by outrage modesty of
Pw.1/victim girl and outraged the modesty of victim girl/Pw.1 and committed sexual harassment upon the victim minor girl/Pw.1 with sexual intent repeatedly or constantly follows or watches or contacts the victim minor girl/Pw.1 either directly or through electronic, digital or any other means beyond all reasonable doubt.
13. The case of the prosecution is that on 26.10.2020 at about 10.00 AM defacto complainant/victim girl/Pw.1 lodged Ex.P1/complaint, stating that her date of birth is 24.08.2005 and on 25.10.2020, at about 05.30 P.M. when she went to attend natures call to the canal which is at a distance from the back side of her house and by observing the same, the accused followed her and came to her and pushed her hand by asking her to fulfill his lust or otherwise, he threatened her that he will tell to her father in a bad manner and defame her and used to criminal force on her by caught hold her hands and on that, she raised hues and cries and then he threatened her not to raise hues and cries or otherwise, he will inform to her father that she came with some other person and snatched her mobile phone from her hands, when she tried to make a 9/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 phone call to her father and dragged her towards bushes on the canal side and she taken her mobile phone from his hands and in the meanwhile her father/LW4 made a phone call to her and on that, she told her father that the the accused had forcibly taken her towards canal side and that her parents and
LW6/Ramesh came there and by seeing them, the accused left her hands, and fled away and then, she informed the said incident to her parents and
LW6/Ramesh and herself and her parents/LWs 4 and 5 went to P.S. Mangapet and police told them to come on the next day, as it was night time and then they went to their house and on 26.10.2020, they again came to P.S. Mangapet at about 09.00 or 10.00 A.M., she gave Ex.P1/complaint to the police. Basing on the said complaint, the Sub-Inspector of Police, P.S. Mangapet has registered a case in Cr.No. 169/2020 U/Secs.354 I.P.C and Sec.11 r/w 12 of POCSO Act and issued ExP5/F.I.R and sent copies to all the concerned and later, he instructed
PW2/W.P.C to record the statement of the victim girl/PW1. Accordingly, PW2 has recorded the statement of the victim girl/PW1 and the same was videographed with the help of videographer/PW5 and later, he handed over the statement of the victim girl along with C.D to LW11/S.I of Police and LW11/Sub-
Inspector of police secured the presence of LW4/father of victim girl and examined him and recorded his statement and he also examined and recorded the statements of PW2, PW5 and later, he visited the scene of offence situated at the open land of one Chityala Ramulu, Ramanakkapet near canal which is nearer to the house of the victim girl/PW1 and secured the presence of PWs6 and 7 and in their presence, they observed the scene of offence and also drawn 10/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 rough sketch of scene of offence and after read over the contents, he obtained the signatures of panchas on Ex.P4/crime detail form and later, he had examined and recorded the statements of PW3 and LW6/Ramesh and gave requisition to
PW4 with a request to furnish the date of birth certificate of victim girl/PW1 and accordingly, PW4 issued Ex.P2/Study, conduct and date of birth certificate of victim girl/PW1 and on 05.11.2020 LW11/S.I of police received reliable information about the presence of accused at his house and he rushed to the house of the accused situated in Ramanakkapet village and apprehended the accused at about 09.00 A.M and on interrogation, the accused voluntarily confessed the offence and later, he brought accused to the police station and affected the accused arrest as per procedure. On 6.11.2020, LW11/Sub-
Inspector of Police gave a requisition before Chief Judicial Magistrate, Warangal for recording Sec.164 Cr.P.C. statement of the victim girl/PW1 and accordingly, the Special Judicial First Class Magistrate (Proh. & Excise cases), Warangal recorded the statement of the victim girl/PW1 U/Sec. 164 Cr.P.C. Later, the
LW11/S.I of Police was transferred and he handed over the C.D file to Lw.12/S.I of Police for further investigation and he verified the investigation done by
LW11/Sub-Inspector of Police and found it on proper lines and after completion of investigation and after collecting all the documents, he filed the charge sheet into the court against the accused.
14. To establish the charges U/s. 354-A IPC and Section 11 r/w 12 of
Protection of Children from Sexual offences (POCSO) Act, 2012 against the accused, the prosecution altogether got examined 08- witnesses out of 12 listed 11/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 witnesses and got marked Exs.P1 to P6 and no evidence either oral or documentary was adduced on behalf of the accused.
15. To establish the charges U/s. 354-A IPC and Section 11 r/w 12 of
Protection of Children from Sexual offences (POCSO) Act, 2012 against the accused, the prosecution mainly relied on the evidence of Pws.1 to Pw8 i.e. Pw.1 is the defacto complainant and victim girl, Pw.2 is the Woman Police constable,
Pw.3 is the mother of the victim girl, Pw.4 is the Heard Master of MPPS School,
Ramanakkapet, Pw.5 is the videographer, Pw.6 and Pw.7 are the panch witnesses for crime details form, Pw.8 is the investigation officer.
16. The documentary evidence relied upon by the prosecution are Exs.P1 to
P6 i.e. Exs.P1 is the complaint, dated 26.10.2020, Ex.P2 is the study, conduct and date of birth certificate, Ex.P3 is the signature of Pw.6 on Ex.P4/ on crime details form, dated 26.10.2020, Ex.P4 is the crime details form, Ex.P5 is the first information report, dated 26.10.2020 and Ex.P6 is the 164 Cr.P.C statement of
Pw.1, dated 19.04.2021.
17. The learned APP submits that the prosecution has clinchingly established the commission of offences U/s. 354-A IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act, 2012 against Accused through the evidence of Pw.1 to Pw.5 and Pw8 coupled with Exs. P1, P2 and P4 to P6 beyond all reasonable doubt and as such, the accused is liable to be convicted.
18.Per contra, the learned counsel for accused submits that on the date 12/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 alleged incident, Pw.1/victim girl did not go to attend natures calls and the accused not followed her and not caught hold her hands and no incident occurred as alleged and Pw.1 foisted a false case against the accused by boring previous grudges and that the victim girl/Pw.1 used to move along with one
Gadepaka Vinay and the accused has seen the same and as such, Pw.1 foisted a false case against the accused with an apprehension that the accused may reveals the same to her parents and previously also panchayats were conducted between Pw.1 and the said Vinay and also with the accused and by boring the grudge, Pw.1 foisted a false case against the accused and the victim girl/Pw.1 loved the said Vinay and knowing the same, the accused told that he will inform her love affair with the said Vinay to her parents and that the accused used to call Pw.1 as his sister and she used to called him as brother and that the victim girl was major by the date of giving Ex.P1 complaint and her date of birth is wrongly mentioned in Ex.P2 certificate and there are land disputes between the accused family and victim girl/Pw.1 family and boring the grudge of the land disputes, Pw.1/victim girl foisted a false case against the accused at the instance of her parents and he did not commit any offence as alleged and the accused is an innocent person and married person and having one daughter and the police did only table made investigation and filed false charge sheet against the accused and the prosecution failed to establish the alleged commission of the offences by the accused beyond all reasonable doubt and therefore, the accused is entitled for benefit of doubt.
19. To establish the charges U/s. 354-A IPC and Section 11 r/w 12 of 13/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
Protection of Children from Sexual offences (POCSO) Act, 2012 against Accused, the prosecution mainly relied on the evidence of Pws. 1 to Pw.5 and Pw.8.
20. Before discussing the oral testimony of the prosecution witnesses, it is expedient to read some of the important averments mentioned in Ex.P1 complaint, basing on which the present case was registered against the accused in brief is that “ the complainant/victim girl was aged about 15 years old and on 25.10.2020 in the evening at about 5.30PM, she went to back yard of her house to Crop Canal for attending natures call and by observing the same, her villager namely the accused came to her and caught hold her hand and pushed her forcibly by saying to full fill his lust by threatening that he will inform to her father and defame her image and on that, she raised hues and cries and tried to make phone call to her father to inform the same and the accused snatched her cell phone and she dragged by caught holding her hand towards Canal and on that, she forcibly taken her mobile phone and in the meanwhile her father made a phone call to her and she informed the incident to him and on that her father, mother and paternal uncle came there and by observing the same the accused left her hand and fled away and prays to take action against the said accused person.”
21. Pw.1/defacto complainant and victim girl, deposed in her evidence that her date of birth is 24.08.2005 and on 25.10.2020, at about 05.30 P.M. when she went to attend natures call to the canal which is at a distance from the back side of her house and by observing the same, the accused followed her and came to 14/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 her and pushed her hand by asking her to fulfill his lust or otherwise, he threatened her that he will tell to her father in a bad manner and defame her and used to criminal force on her by caught hold her hands and on that, she raised hues and cries and then he threatened her not to raise hues and cries or otherwise, he will inform to her father that she came with some other person and snatched her mobile phone from her hands when she tried to make a phone call to her father and dragged her towards bushes on the canal side and she taken her mobile phone from his hands and in the meanwhile, her father/LW4 made a phone call to her and on that, she told her father that the the accused had forcibly taken her towards canal side and that her parents and LW6/Ramesh came there and by seeing them, the accused left her hands and fled away and then, she informed the said incident to the her parents and LW6/Ramesh and herself and her parents/LWs 4 and 5 went to P.S. Mangapet and police told them to come on the next day, as it was night time and then, they went to their house and on 26.10.2020, they again came to P.S. Mangapet at about 09.00 or 10.00
A.M. and she gave Ex.P1/ complaint to the police.
22. PW2/ Woman Police Constable, deposed in her evidence that on 26.10.2020 on the instructions of Sub-Inspector of Police, Mangapet P.S., she examined and recorded the statement of victim girl/PW1 in Woman rest room of
P.S. Mangapet and the same was videographed by Pw.5/Praveen Kumar and later, she handed over the statement of the victim girl/PW1 to the S.I of Police,
Mangapet 15/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
23. PW3/ mother of the victim girl deposed in her evidence that on 25.10.2020, at about 05.30 P.M. when victim girl/PW1 went to attend natures call to the canal which is at a distance from the back side of their house and not returned back and as it was late, her husband/LW4 made a phone call to PW1 and on that, PW1 informed to her husband/LW4 on phone that the accused had taken her towards agricultural fields and LW4/her husband informed the same to her. Then, immediately she along with her husband/LW4, LW6/Ramesh rushed to the scene of offence and by seeing them, the accused left the hands of PW1 and fled away and later, they brought PW1 and returned to their house and herself,
PW1 and her husband/LW4 went to P.S.Mangapet, but the Sub-Inspector of police was not there in the police station and on that, they returned to house and again on the next day, they went to the police station and PW1 gave the
Ex.P1/complaint.
24. Pw.4/Head Master of MPPS School, Ramanakkapet deposed in his evidence on the requisition given by P.S. Mangapet, he verified their school records and issued Ex.P2/Study, Conduct and date of birth certificate of the victim girl/PW1and her date of birth as per their school records is 24.08.2005.
25. Pw.5/Videographer, deposed in his evidence that on the instructions of
Sub-Inspector of Police, Mangapet, he videographed the recording of statement of the victim girl/PW1 and later, he handed over the CD to the Police.
26. Pw.6/panch witness for crime details form, but he did not support the case of the prosecution and he deposed in his evidence that no panchanama 16/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 was conducted and no rough sketch was drawn in the presence and he only identified his signature on Ex.P3 on crime details form, dated 26.10.2020.
27. Pw.7/Panch witness for Ex.P4/ crime details form, deposed in his evidence that about three years back at about 11.0AM when he was on the road in their village, Police Mangapet came to him and called to the house of accused and observed the scene of offence near the house of the accused and obtained his signatures on the Ex.P4/crime details form, dated 26.10.2020 and he only identified his signature on Ex.P3 on crime details form.
28. Pw.8/ is the investigation officer and his evidence discloses with regard to issuance of FIR and investigation.
29. It is settled law that the Criminal Jurisprudence begins with the presumption that unless otherwise proved, the person facing the trial would be deemed to be an innocent. The burden to prove the charges against the accused is on the prosecution, but not on the accused.
30.Section 29 of the POCSO Act creates a presumption of guilt. No doubt,
Courts have held that the presumption under section 29 is not absolute and it is for the prosecution to prove the foundational requirements of commission of offence in order that the presumption can be drawn. Section 30 of he POCSO
Act, creates a presumption of culpable mental state on the part of the accused.
31. In order to make out the case under section 12 of POCSO Act, the prosecution has to prove that the accused committed sexual harassment against 17/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 the victim/Pw.1. Sexual harassment is said to be caused to the child, if a person utters any word or makes any sound or exhibit any object or part of the body with intention that such word or sound shall heard or such gesture shall be seen by the child. Touching the person of female child with sexual intent makes out offence of sexual assault. In order to make out the case under section 12 of
POCSO Act, it is to be proved that the accused committed sexual harassment against the victim girl/Pw.1 with sexual intent.
32. As per Section 354-A IPC, whoever assaults or uses criminal force to any woman or abets or conspires to assault or uses such criminal force to any woman intending to outrage or knowing it to be likely that by such assault, he will thereby outrage or causes to be outraged the modesty of the woman by disrobing or compel her to be naked on any public place, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine".
33.sexual harassment - any of the following acts should be committed by the accused:-
1) physical contact and advances involving unwelcome and explicit sexual overtures or
2) a demand or request for sexual favour or
3) showing pornography against the will of a woman or 18/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
4) making sexually coloured remarks shall be guilty of the offence of sexual harassment.
Sexual harassment - the nature of unwelcome physical contact and advances or a demand or request for sexual favours or showing pornography or making sexually coloured remarks. It is an offence against the society.
34. The prosecution must prove beyond all reasonable doubt that the accused person committed the offence of assault or criminal force against a woman with an intention to outrage her modesty. Section 354- A IPC is an unwelcome physical contact with advances. Every kind of physical contact cannot be covered under Section 354-A I.P.C. The prosecution to make out a case under section 354-A I.P.C has to show that the act of accused was embedded with explicit sexual overtures and the use of word ‘and’ in Section 354-A I.P.C requires that there should be a physical contact with sexual advances/overtures. The prosecution to prove the case under Section 354-A I.P.C examined the victim/defacto complainant as Pw.1 and her mother as Pw.3 .
Section 354-A I.P.C is applicable when physical contact is coupled with advances, but every physical contact cannot covered under Section 354-A I.P.C.
35. Section 11 of the POCSO Act deals with the offence of sexual harassment upon a child and the same is as under:-
A person is said to commit sexual harassment upon a child when such person with sexual intent 1) utters any word or makes any sound, or makes any 19/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 gestures or exhibits any object or part of body or repeatedly or constantly follows or watches or contacts the victim minor girl/Pw.1 either directly or through electronic, digital or any other means is punishable under section 12 of
POCSO Act. In cases under POCSO Act, the prosecution is required to prove some foundational facts, not beyond reasonable doubt, but by preponderance probability.
36. The cross examination of Pw.1/victim discloses that she herself drafted
Ex.P1/complaint without dictation by any person and admitted that 25.10.2020 was a Dasara Festival and the accused is resident of their village and he was already married and stated that name of the first wife accused is Vasantha and his second wife name is Pavani and the Second marriage of the accused is love marriage. She stated that at the time of incident, there is no bath room in their house and at present there is bath room in their house and it was recently constructed. She admitted that she did not state before the police, not mentioned in Ex.P1/complaint and also not stated before the Magistrate as to which of her hand was caught hold by the accused at the time of alleged incident and she did not furnish the call data particulars of her mobile phone to the police at the time of giving Ex.P1/complaint. She admitted that house of the accused is nearby their house and she used to call him as brother. She stated that she does not know one Gadepaka Vinay but she knows one Chanti and she does not know that the accused, said Vinay and Chanti were there at the scene of offence to protect their fields from pigs and denied that she used to move with the said
Gadepaka Vinay and the accused saw the same and as such, she foisted a false 20/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 complaint against the accused with an apprehension that the accused may reveals the same to her parents and also denied that previously panchayats were conducted between her and the said Vinay and also with the accused and by boring grudge, she foisted false case against the accused and no incident occurred as alleged.
37. The evidence of Pw.2 discloses that she is the Woman police constable and recorded the statement of victim girl/Pw.1 in P.S. Mangapet in woman rest room and stated that she did not state before the police about the time of commencement and completion of recording of statement of victim girl/Pw.1 and she collected the I.D. proof of the victim girl/Pw.1 and handed over the same to the police and denied that she had not recorded the statement of victim girl/Pw.1 and the same was not videographed by Pw.5.
38. Pw.5 is the videographer and in his cross examination admitted that he did not state before the police the time of commencement and the time of completion of videographing the recording of statement of victim girl/Pw.1 and denied that he does not know videographing.
39.Pw.3 /mother of the victim girl/Pw.1 in her cross examination stated that she had not given any proof of age of Pw.1 to the police at the time of giving
Ex.P1/complaint and stated that her husband Lw.4 and Pw.1 are having mobile phones but she had not given their mobile phone numbers or mobile phones to the police and admitted that 25.10.2020 was a Dussra festival. She denied that they foisted a false case against the accused by boring previous grudges and at 21/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 the instance of Lw.6/Ramesh and denied that Dhanalaxmi is the daughter of
Lw.4/Ramesh through his first wife and denied that the said Dhanalaxmi is also her daughter.
40.Pw.4/ who issued Ex.P2 study, conduct, date of birth certificate of victim girl/Pw.1 admitted in his cross examination that the parents of the victim girl/Pw.1 stated the date of birth of victim girl orally and further admitted that the victim girl/Pw.1 studied in their school from 2nd Class to 5th Class and denied that the denied that the date of birth mentioned in Ex.P2 is false and the victim girl/Pw.1 was major by the date of the alleged incident.
41.Pw.8/investigation officer in his cross examination stated the victim girl/Pw.1 came along with her parents that is Pw.3, Lw.4 and they did not furnish the date of birth certificate of the victim girl/Pw.1 at the time of giving the complaint and admitted that without age proof, Lw.11/S.I of Police issued
Ex.P5/F.I.R and stated that the victim girl/Pw.1 apparently looks as minor at the time of Ex.P1/complaint. He stated that he had not obtained the date of birth certificate of the victim girl/Pw.1 from panchayat Secretary, Ramanakkapet
Grampanchayat and denied that the victim girl/Pw.1 was major by the date of giving Ex.P1 complaint and the date of birth of the victim girl/Pw.1 is wrongly mentioned in Ex.P2. He denied that there are land disputes between the accused family and victim girl/Pw.1 family and by boring grudge of the land disputes Pw.1/victim girl foisted a false case against the accused at the instance of her parents and the accused did not commit any offence and he is no way 22/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 concerned with the present case and he is an innocent.
42.The learned counsel for the accused submits that when the village ladies went to attend natures call, some body will accompany them, whereas in the present case the victim girl/Pw.1 herself alone went to attend the natures call and there is no eye witness to the alleged incident, except the statement of the victim girl and as per the statement of the victim girl, there is no specific time and as to which hand of the victim girl/Pw.1 was caught hold by the accused at the time of alleged incident and the police did not take the call data of the mobile of the victim girl/Pw.1 and it shows that no incident occurred and
Pw.1/victim girl foisted a false case against the accused to harass him by boring the previous grudges in mind and Pw.2/Woman Police constable did not follow the procedure in recording the statement of the victim girl and as such, her statement cannot be taken into consideration and that there is some disputes in between the families of the victim girl and the accused and as such, the present false case was foisted against the accused by the victim girl/Pw.1 at the instance of her family members and the videographer/Pw.5 do not know the commencement and time of completion of videograping the statement of the victim girl and he also does not know who recorded the statement of victim girl and as such, his evidence cannot be considered and the evidence of investigation officer/Pw.8 reveals that Pw.1 did not furnish the date of birth certificate at the time giving Ex.P1/complaint and stated that Pw.1 looks like a minor at the time of complaint and one Chityal Ramulu is having land at the scene of offence. But he was not cited as a witness and there is no specific allegation of committing 23/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 the alleged offences and the prosecution failed to establish the case against the accused and as such, the accused is entitled for acquittal.
43.In cases under POCSO Act, the prosecution is required to prove some foundational facts, not beyond reasonable doubt, but by preponderance of probability. As per Ex.P2 study, conduct and date of birth certificate the victim girl/Pw.1 date of birth is 24.08.2005. The evidence of Pw.8/investigation officer reveals that on 26.10.2020 the victim girl/Pw.1 came to their Police station along with her parents and they did not furnish the date of birth certificate of victim girl/Pw.1 at the time of giving Ex.P1/complaint and without any proof
Lw.11/S.I of Police issued Ex.P5/FIR and stated that the victim girl/Pw.1 apparently looks as minor at the time of giving Ex.P1/complaint. The alleged incident was occurred on 25.10.2020. Except putting the suggestions to
Investigation officer/Pw.8 and the victim girl/Pw.1, and her mother/Pw.3, nothing was elicited from their evidence that she was not a minor at the time of alleged incident and that she was aged about more than 18-years at the time of alleged incident.
44.Pw.1/victim has clearly and categorically narrated the incident in detail.
The testimony of Pw.1/victim has also been fully corroborated by the evidence of Pws.2 to 5 and Pw.8 coupled with averments in Ex.P1/ complaint. The complainant/Pw.1 has specifically stated the alleged commission of offences by the accused that on the date of the incident, the accused followed her and came to her and pushed her hand by asking her to full fill his lust or otherwise, he 24/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 threatened her that he will tell to her father in a bad manner and he will defame her and used criminal force on her by caught hold her hands and tried to outrage her modesty and on that, she raised hue and cries and in the meanwhile, her parents and Lw.6/Ramesh came there and by seeing them, the accused left her hands fled away. The victim/Pw.1 evidence discloses that her statement was also recorded by the Magistrate. Ex.P.6 is the section 164 Cr.P.C statement of the victim recorded by the Lw.10/the learned Magistrate. Except putting suggestions, nothing was elicited from the evidence of the Pw.1/victim girl or her mother/Pw.3 as to what are the family disputes between the accused family and the victim/Pw.1 and what are the previous grudges and what is the necessity for the victim girl/Pw.1 or her mother/Pw.3 to foist a false case against the accused. Simply because Pw.2 the woman police constable and
Pw.5/Videographer did not state before the police about the commencement and completion of recording of the statement of victim girl/Pw.1, their entire evidence cannot be thrown out. The evidence of Pw. 2, 3 and Pw.8 corroborating with the evidence with the victim girl/Pw.1. Nothing is elicited from their cross examination as to what is necessity for them to depose falsehood against the accused before a court of law and what are the disputes between Pw.1 family and the accused family and the reason for implicating the accused in a false case like a offence of this nature. Admittedly, the victim girl/Pw.1 is a minor girl. The evidence of Pw.1/victim girl is remain unimpeached even during the cross examination. Except putting suggestion, nothing is elicited from the cross examination of Pw.1/victim girl that no incident occurred as alleged and the 25/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 accused is no way concerned with the present case and he did not commit any offences as levelled against him. In the light of the aforesaid discussion, the court is of the considered opinion that the whole conduct of the accused constitute the offence U/sec. 354-A IPC, Sec. 11 r/w 12 of POCSO Act.
45. Simply because the investigation officer not examined land owner of the scene of offence and there is no eye witness and the investigation officer did not collect the call data of the mobile phone of victim girl/Pw.1 and there are latches on the part of the investigation officer, the entire case of the prosecution cannot be thrown out, when the evidence of the material witnesses is corroborating with each other in respect of the material particulars about the alleged commission of offences under section 354-A of IPC and Sec. 11 r/w 12 of
POCSO Act by the accused.
46. The learned APP further submits that the presumption of culpable mental state, as envisaged in section 30 of POCSO Act was not rebutted by the defence. Usually in criminal cases, the burden of proof lies on the prosecution and the guilt must be proved beyond all reasonable doubt. Under POCSO Act, however, there is a presumption that a person who is prosecuted for an offence has actually committed the offence, unless contrary is proved (Sec. 29 of Act).
Therefore, the Court assumes that the accused is guilty, once the prosecution lays down the foundation of the case. The act also presumes that the accused person had a sexual intent when touching the child. (sec. 30 of the act).
47. Section 29 of the POCSO Act says that when a person is prosecuted for 26/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 committing an offence of sexual assault or sexual harassment against the minor, the Special Court trying the case “shall presume” the accused to be guilty.
Except putting suggestions, nothing is elicited from the evidence of Pws. 1 to 5 and 8 to discredit their testimony or what is the necessity for them to depose falsehood against the accused before a court of law and what is the enmity between Pw.1 family and accused family. Nobody will foist a false case against any person in an offence of this nature by involving victim minor girl/Pw.1.
Nothing is elicited from the evidence of Pw.8/investigation officer to show what is necessity for him to foist a false case against the accused and whether there is enmity in between him and the accused. On the other hand, the evidence of
Pws.1, 3 and 8 coupled with Ex.P1, P2, P4 to P6 are corroborating with each other in respect of material aspects about the commission of offences U/s.354-A
IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act. In the case on hand, the accused person has not discharged the statutory burden required under section 29 of the POCSO Act either by producing the defence witnesses or by rebutting the positive evidence of Pws. 1 to 5 and 8 coupled with Ex.P1, P4 to P6.
48.The court has carefully considered the facts and circumstances of the present and gone through the material available on record and arguments submitted by learned APP and learned counsel for the accused. The testimony of victim girl/Pw.1 has been fully corroborated by Pw.2 to 5 and 8 coupled with
Ex.P6 Sec. 164 Cr.P.C statements of victim girl/Pw.1 and averments mentioned in
Ex.P1/complaint. The testimony of Pw.1/victim girl is absolutely reliable and is 27/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 sufficient to hold the accused guilt of committing the offences U/s.354-A IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO)
Act, 2012. The evidence of victim girl/Pw.1, remain un-impeached during their cross examination. All the suggestions put to contradicts the Pw.1 to 5 and Pw.8 witnesses were denied. In the light of the aforesaid discussion, the court is of the considered opinion that the whole conduct of the accused constitute the offences punishable U/s.354-A I.P.C and Section 11 r/w 12 of Protection of
Children from Sexual offences (POCSO) Act and in my considered view, the prosecution has successfully established the sexual harassment made by the accused in terms of section 11 of the POCSO Act, which culpable act is punishable under section 12 of the said Act and proved the guilt of the accused under section 354-A IPC and Section 11 r/w 12 of Protection of Children from
Sexual offences (POCSO) Act beyond all reasonable doubt. As the testimony of the Pw.1/victim has been fully corroborated by the other prosecution witnesses and Pw.1/victim girl has clearly and categorically narrated the incident in detail.
In these circumstances, simply because there are latches on the part of the investigation officer and there are minor omissions, discrepancies and improvements in the evidence of the prosecution witnesses, the entire case of the prosecution cannot be brushed aside, when the evidence of Pw.1/victim girl is corroborating with the evidence of Pws.1 to 5 and Pw.8 coupled with Ex.P1,
P2, P4 to P6 in respect of material aspects about the alleged commission of the offences punishable U/s.354-A IPC and Section 11 r/w 12 of Protection of
Children from Sexual offences (POCSO) Act.
28/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
49. Time and again, the test for relying upon the sole testimony have been reiterated by the Hon'ble Supreme Court. In the case of State of Himachal
Pradesh Vs. Manga Singh reported in (2019) 16 SCC 759, it was held by the
Hon'ble Apex Court that the sole testimony of prosecutrix, if it inspires
confidence, can be the basis for conviction of the accused. Minor contradictions or small discrepancies should not be a ground for throwing the evidence of the victim. If the evidence of the victim does not suffer from any basic infirmity and probabilities factor does not render it unworthy of credence.
50. For the reasons set forth in the preceding paragraphs and when the evidence of Pws.1 to 5, 8 coupled with Ex.P1, P4 to P6 is put together, it could be seen that they are corroborating with each other in respect of material aspects about the commission of offences U/s.354-A IPC and Section 11 r/w 12 of
Protection of Children from Sexual offences (POCSO) Act by the accused and the prosecution has clinchingly established the commission of the offences
U/s.354-A IPC and Section 11 r/w 12 of Protection of Children from Sexual offences (POCSO) Act by the accused beyond all reasonable doubt and minor omissions and discrepancies elicited in the evidence of prosecution witnesses are not helpful to the case of the defence to disbelieve the case of the prosecution.
51. Since, there is no property, no property order is passed.
52. In the result, the accused is found guilty for the offences punishable
U/s.354-A IPC and Section 11 r/w 12 of Protection of Children from Sexual 29/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 offences (POCSO) Act, 2012 and accordingly he is convicted as per the provisions of 235(2) CrPC.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court on this the 30th day of January, 2024.
Sd/-
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MULUGU,
FAC - FAST TRACK SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF RAPE AND
PROTECTION OF CHILD AGAINST SEXUAL OFFENCES
(POCSO) ACT,
MULUGU.
53. When I questioned the accused with regard to quantum of sentence accused stated that “ my father died during my childhood. My mother is having health issues. I am having two unmarried sisters. I am having wife and two daughters. They are all dependent on me. I am doing coolie work and maintaining our family and prays to impose less punishment. I am the only earning member in our family.
54. Heard the accused with regard to the quantum of sentence. Heard the learned counsel for the accused and learned A.P.P. The counsel for the accused submits that the accused is a poor person and prays to take a lenient view and prays to impose only fine amount. The learned A.P.P. submits that it is not a fit case to take a lenient view as the offence is grave in nature and prays to award some compensation amount to the victim girl/Pw.1.
55.Taking into consideration the plea of accused, nature of offence, age of victim girl, gravity, heinous nature of the offence, this court considered that it is 30/33Prl. S.J., Mlg.
Spl.SC 111 of 2022 not a fit case to take a lenient view in awarding sentence against accused or to apply the provisions of Probation of Offenders Act or Sec. 360 Cr.P.C to Accused.
56.Hence, the accused is sentenced to under to Rigorous Imprisonment for a period of One year for the offence punishable U/sec.354-A I.P.C and he shall pay fine amount of Rs.5,000/- (Rupees five thousand only), and in default of payment of fine amount, he shall under go simple imprisonment for a period of (01) one month.
57.The accused further sentenced to undergo Rigorous Imprisonment for a period of three years for the offence punishable under section 11 r/w 12 of
Protection of Children from Sexual offences (POCSO) Act-2012 and he shall pay fine amount of Rs.5000/- (Rupees five thousand only) and in default of payment of fine amount, he shall under go simple imprisonment for a period of (02) two months. Total fine amount is Rs.10,000/-( Rupees Ten thousand only). The remand period already undergone by the Accused from 05.11.2020 to 04.12.2020 shall be set off as per the provisions of 428 Cr.P.C. All the sentences shall run concurrently. Out of the fine amount, if realized, an amount of Rs.8,000/- (Rupees eight thousand only) shall be paid to the Pw.1/victim girl towards compensation as per the provisions of section 357 (3) Cr.P.C. As the accused is found guilty for the offences punishable under section 11 r/w sec. 12 of POCSO Act,2012, this court is of the considered opinion that the victim girl/Pw.1 has to be compensated for her mental suffering and as such, an amount of Rs.10,000/- (Rupees Ten thousand only) is decided as compensation amount.
31/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
Therefore, the Secretary, District Legal Services Authority is directed to take steps for payment of said compensation of Rs.10,000/- to the victim girl/Pw.1 at the earliest.
58. The accused is appraised about his right to prefer an appeal before the
Hon’ble High Court and he is further informed that he will be provided Legal Aid
Counsel, if required.
59. The office is directed to furnish free copy of the Judgment to the accused as mandated under section 363 Cr.P.C to enable him to prefer an appeal.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court on this the 30th day of January, 2024.
Sd/-
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MULUGU,
FAC - FAST TRACK SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF RAPE AND
PROTECTION OF CHILD AGAINST SEXUAL
OFFENCES (POCSO) ACT,
MULUGU.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION: FOR DEFENCE:
PW1Victim girlNone.
PW2 Smt. K. Renuka
PW3Mother of victim girl 32/33Prl. S.J., Mlg.
Spl.SC 111 of 2022
PW4Md. Sarvar
PW5V. Praveen kumar
PW6Ch. Rama Rao
PW7M. Anjibabu
PW8Sk. Taher Baba
EXHIBITS MARKED
FOR PROSECUTION:
Ex.P1: Is complaint, dated 26.10.2020
Ex.P2:is study, conduct and date of birth certificate
Ex.P3:is signature of Pw.6 on crime details form, dated 26.10.2020
Ex.P4:is crime details form, dated 26.10.2020
Ex.P5:is first information report, dated 26.10.2020
Ex.P6:is 164 Cr.P.C statement of Pw.1, dated 19.04.2021.
FOR DEFENCE:
Nil
MATERIAL OBJECTS MARKED:
Nil.Sd/-
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MULUGU,
FAC - FAST TRACK SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF RAPE
AND PROTECTION OF CHILD AGAINST SEXUAL
OFFENCES (POCSO) ACT,
MULUGU.
33/33Prl. S.J., Mlg.