IN THE COURT OF FAST TRACK SESSIONS JUDGE FOR
EXPEDITIOUS DISPOSAL OF CASES OF RAPE AND
PROTECTION OF CHILDREN AGAINST SEXUAL
OFFENCES (POCSO) ACT, AT KOTHAGUDEM.
THURSDAY, THIS THE TENTH DAY OF APRIL, 2025
Present: P.VASANTH,
Principal District and Sessions Judge,
Bhadradri Kothagudem. FAC. Fast Track Sessions Judge for Expeditious Disposal of Cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem.
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1.Name of the Complainant :The State of Telangana through the Sub-Divisional Police Officer, Yellandu.
2.Name of the Accused : Bhukya Nagesh @ Nageswara Rao, S/o Vasram (late), Age: 25 years, Occ: Mason work, R/o Thangellagadda, H/o Raghaboinagudem, Yellandu Mandal, Bhadradri Kothagudem District.
3.Offence under Section :Sec.65(2) of B.N.S. and Sec.6 of POCSO Act, 2012.
4.Crime Number and 171 of 2024 Name of Police Station :Yellandu.
5.Plea of the accused :Pleaded Not Guilty
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6.Finding of the Court :Accused is found guilty
In the result, the accused is found
7.Sentence of Order guilty for the offences punishable under Section 65(2) of B.N.S. and Section 6 of the POCSO Act, 2012 and accordingly, the accused is convicted under Section 258(2) of B.N.S.S. for the said charges. Accordingly, the accused is sentenced to suffer Imprisonment for Life and to pay a Fine of Rs.1,000/- (Rupees One thousand only) for the offence under Section 5(m)punishable under Section 6 of the POCSO Act, 2012, in default of payment of Fine, he shall undergoSimple Imprisonment for a period of (3) Three months.
In view of the Section 42 of POCSO Act, 2012 and since the accused is sentenced under Section 6 of the POCSO Act, 2012, no separate sentence is passed for the offence under Section 65(2) of B.N.S.
Accused is in jail. The remand period of the accused from 07.07.2024 to till date shall be given set off under Section 468 of B.N.S.S.
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The Office is directed to furnish a free copy of the Judgment to the accused as mandated under Section 404 of B.N.S.S. enabling him to prefer an appeal within THIRTY days from today.
Ex.P5 (Pen-Drive), M.O.1 (C.D.) and M.O.2 (Knickers) shall be destroyed after expiry of the appeal time.
8.Prosecution conducted by :Sri V.Nagi Reddy, Special Public Prosecutor. Smt.P.V.D.Lakshmi, Addl.Public Prosecutor.
9.Defence conducted by :Sri.P.Niranjan Rao, Deputy Legal Aid Defence Counsel appointed as Legal Aid Counsel
for the Accused.
This case is coming on 02.04.2025 before me for final hearing in the presence of Sri V.Nagi Reddy, Special Public Prosecutor and Smt.P.V.D.Lakshmi, Addl.Public Prosecutor for the State; and of Sri.P.Niranjan Rao, Deputy Legal Aid Defence Counsel appointed as Legal Aid Counsel for the Accused; upon perusal of the material papers on record, upon hearing and having stood over for consideration till this day, this Court delivered the following:
::J U D G M E N T::
1.The Sub-Divisional Police Officer, Yellandu filed charge sheet against the sole accused herein for the offences under Section
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65(2) of Bharatiya Nyaya Sanhita (B.N.S.) and Section 6 of
Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”).
2.Shorn of the unnecessary details, the factual matrix germane to the prosecution case is as follows:
(i) This is a case of aggravated penetrative rape on a minor girl who is below 12 years of age committed by the accused, who is 25.
(ii)The brief facts of the prosecution case are that on 05.07.2024 at 18:15 hours the de facto complainant lodged police complaint stating that he has two daughters and his elder daughter is studying 1st Class; on 04.07.2024 at 08:00 hours he and his wife left their house to attend Coolie work by leaving behind their daughters with his father at home. When they returned home at 17:00 hours, his youngest daughter, who was playing near their house, came to her mother and told that
Nagesh uncle (accused) took her and her sister to his house; took
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them into a room and in her presence, accused removed the underwear of her sister and slept over her. His wife informed the same to him. His wife called her elder daughter and checked her private part and found blood on her cunt; in the night his elder daughter cried by saying that she was getting the stomach pain.
On 05.07.2024 in the morning she was also suffering from stomach pain. Then he took her to a Lady Doctor namely
Dr.Kalpana at Yellandu and who examined his daughter and revealed that a hole was there in her cunt. As the accused sexually assaulted his daughter, he requested to take necessary action.
(iii)The Police registered the case for the offence under
Section 65(2) of B.N.S. and Section 6 of the POCSO Act, 2012.
(iv)On 06.07.2024 PW.14 (S.D.P.O., Kothagudem) made
W.S.I., Incharge of “Bharosa Center” to record the statement of minor victim girl and her sister under the coverage of videography; he along with C.I. of Police, Yellandu visited the house
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of the de facto complainant at Thangellagadda Headquarters of
Raghaboinagudem where he examined the parents of the victim girl; W.S.I., (PW.5) of “Bharosa Center” examined the victim girl and her sister at “Bharosa Center”, Kothagudem in the presence of their mother (PW.2) under the video coverage; S.D.P.O. - PW.14 visited the scene of offence shown by the father of the victim girl where the S.D.P.O. drafted C.D.F. under videography by drawing rough sketch of the scene of offence in the presence of panch witnesses (PW.10 and LW.14); he obtained Study Certificate of the victim girl from the Headmaster of the School to determine the age of the minor; Inspector of Police referred the victim to “Govt.General Hospital”, Kothagudem for medical examination and report.
(v) The Headmistress – PW.7 of M.P.UPS., Mulakalapalli,
Yellandu Mandal furnished Date of Birth Certificate of the victim girl as per which the age of the victim was 5 years 7 months as on 05.07.2024 i.e. date of the offence.
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(vi) PW.11 – Doctor examined the victim minor girl and preserved 1) Urethral swab, 2) Vulval swab, 3) Vaginal swab,
4) Nail clippings of the victim girl during the course of medical examination and after receipt of the R.F.S.L. Report, PW.11 –
Doctor opined that “Item No.5 cloth containing human semen and spermatozoa noted, Item Nos.1 to 4 are negative, on external examination, contusion / bruise over the left labia majora noted physical or sexual abuse might happened according to physical examination.
(vii)Upon the requisition of PW.13 – C.I. of Police,
II Addl.Judicial Magistrate of First Class, Kothagudem recorded the statements of PWs.3 and 4 aged 6 and 4 respectively.
(viii) The accused was apprehended on 06.07.2024 at 14:30 hours by S.D.P.O., Kothagudem – PW.14 at Thangellagadda crossroads, Raghaboinagudem, summoned PW.10 and LW.14
before whom the accused confessed the offence and disclosed his
identity with address; he confessed to be making his living by
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doing Mason work, parents of the victim are his neighbours and his relatives; on 04.07.2024 when he was at his home, around 11.00 a.m. while he alone was present, his sexual lust was at its peak and then he searched around the house and found two children playing near his house; he pretended to be playing with them and took them inside his house saying to give chocolates; took them into a room, removed the underwear of the elder child / victim in the very presence of the younger child, laid the victim on the ground, he took off his pants, inserted his penis into the cunt of the victim; his sperm gushed out of his penis and fallen on the thighs of the victim girl as well as on the floor; he wiped sperm drops with his knickers and kept that knickers on a plastic box in his house; on 06.07.2024 around 14:00 hours he was waiting for an Auto to go to Yellandu and meanwhile police apprehended him.
(ix) S.D.P.O. - PW.14 along with the mediators and accused proceeded to the house of the accused and the house is of three rooms sheeted house; he went into third room of his house, showed his knickers to the mediators which was kept on a plastic
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box; knickers are of ash colour and containing yellow thread to tie it and white stains on it; he also showed the middle room where he wiped the sperm with his knickers. S.D.P.O. - PW.14 seized the same before the mediators PW.10 and LW.14 by pasting their signed slips on the seized knickers having white stains and then brought the accused to P.S.; issued arrest card and referred him to “Area Hospital”, Yellandu for Potency Test, Covid Test etc.
whereupon the Medical Officer – PW.12 examined the accused and issued Certificate vide Ex.P12 certifying that accused is “capable of performing sexual act”.
(x)R.F.S.L. issued report opining that “Item Nos.1 to 5 are examined; human semen and spermatozoa are detected on
Item No.5 but they are not detected on Item No.1 to 4; blood is not detected on Item No.4 and 5; foreign material is not detected on
Item No.4”.
(xi)On 27.07.2024 S.D.P.O., Yellandu - PW.15 obtained
Medical opinion from Lady Medical Officer – PW.11 who gave her
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opinion that “Item No.5 cloth containing human semen and spermatozoa noted; Item No.1 to 4 are negative; on external examination, contusion / bruise over left labia majora noted; physical or sexual abuse might happened according to physical examination”.
(xii)PW.9 – Doctor examined victim girl – PW.3 and held that a hole was there in her cunt. As accused has sexually assaulted the minor girl PW.3 (6 years) and hence, the Charge sheet.
3.This Court took the case on file for the offences punishable under Section 65(2) of B.N.S. and Sec.6 of the POCSO Act, 2012 and on appearance of the accused, copies of the charge sheet and all the annexures thereto were furnished to him, examined him under Section 251 of B.N.S.S., charges for the offences punishable under Section 65(2) of B.N.S. and Sec.6 of the POCSO
Act, 2012 were framed, read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.
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4.During the course of trial, P.Ws.1 to 15 were examined and
Exs.P1 to P17 and M.Os.1 and 2 marked. Accused examined
DW.1 as defence evidence. The details of exhibits shall be noted at the appendix of evidence.
5.The Status of the witnesses examined is as under:-
a) PW.1 is the father of victim girl child and who made the police complaint.
b) PW.2 is the mother of the victim girl child.
c) PWs.3 and 4 are girl children aged 6 and 4 respectively and according to the prosecution, when accused alone was present in his house and spotted the two girl children playing near his house, he pretended to be playing with them, took them into his house, gave them chocolates, took them into a room, removed the underwear of 6 year old girl in the very presence of her younger sister and ravished the girl. Four years old sister of the victim girl
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was a mute spectator to the ghoulish act of the accused with her elder sister.
d) PW.5 is the Woman S.I. at Bharosa Center and who recorded the statement of victim girl under Audio and
Video coverage.
e) PW.6 is the Woman P.C. who recorded the statement of
PW.4 (sister of the victim aged 4) under Audio and Video coverage.
f) PW.7 is the Headmistress of M.P.UPS School who issued
Study and Conduct Certificate of the victim girl to ascertain her age.
g) PW.8 is a private Photographer who photographed the scene of offence.
h) PW.9 is the Doctor who initially treated the victim minor girl at her hospital in Yellandu.
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i) PW.10 is the panch witness for the Scene of offence-cum-
Confession and seizure panchanama of accused.
j) PW.11 is the Incharge/HOD Doctor at “Govt.General
Hospital”, Kothagudem and who examined the victim girl.
k) PW.12 is the Doctor who examined the accused and issued Potency Test Report.
l) PWs.13 to 15 are the Investigating officers.
Be it noted that the accused examined Listed Witness No.11 namely M.Kanthamma as DW.1 on defence side.
6.After conclusion of the prosecution evidence, the accused was examined under Section 351 of B.N.S.S. but he denied the incriminating evidence of the prosecution witnesses and further stated the same to be false. He examined DW.1 as defence evidence.
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7.After conclusion of the trial, the learned Special Public
Prosecutor and the learned defence counsel advanced their respective arguments and thereafter the case is coming for judgment.
8.Now the points that arise for determination are:-
i) Whether the accused has committed rape and aggravated penetrative sexual assault on the victim child, who was 6 years old at the time of incident?
ii) Whether the prosecution has brought home
the guilt of the accused for the offences punishable under Section 65(2) of B.N.S. and Sec.6 of the POCSO Act, 2012?
9.POINTS NO.1 & 2 :-
i)Unfolding the prosecution case, P.W.1 who is the de facto complainant and father of the victim girl and her younger sister testified that about four months ago, on one day his younger daughter PW.4 aged 4 years told him that the accused raped his elder daughter aged 6 years. Upon his enquiry, his elder daughter told that accused did not touch her let alone molesting her.
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He made Ex.P1 Complaint but he does not know its contents and police never examined him. Thus, initially he did not support the prosecution case but he admitted to have stated to police in his
Sec.180 B.N.S.S. statement vide Ex.P2 that while his elder daughter was playing near the house of accused, Accused took her to his house along with his younger daughter into a room; removed the undergarment of his elder daughter, slept over her; his wife (PW.2) found blood on the cunt of the child who complained stomach pain in the night time; one Dr.Kalpana (PW.9) examined his elder daughter and disclosed that there was hole in the cunt of the child. He filed Ex.P1 Complaint by incorporating the said facts. Police examined him.
It is quite astonishing that in second para (of his chief examination), the PW.1 gave clean chit to the accused but in third para (of his chief examination) he graphically described the incident. It is another matter that he made a U-turn in his cross examination by stating that he is not aware of the contents of
Ex.P1 and that he and accused have compromised the matter.
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In the above scenario, it is worthwhile to note that in Para
No.3 of his chief examination, the PW.1 narrated the incident in detail, thereby attributing the crime of rape to the accused and further, he stated, in his concluding line of cross examination, that he and accused have compromised the matter. In this regard, the learned Public Prosecutor urged with solemn vehemence that the very phrase “compromised the matter” goes a long way to convey the point that the question of compromise arises only if the accused committed the offence; otherwise, the term “compromise” would not have been uttered by PW.1. It is but natural that the word “compromise” per se connote that the word “compromise” is a corollary to an occurrence of any offence or litigation. It can be said, in summation, that what can be construed to mean from the testimony of PW.1 is that the accused committed sexual assault on the 6 years old daughter of PW.1 in the very presence of his 4 years old daughter to whom the accused took inside his house offering chocolates.
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(ii)PW.2 is the mother of the victim child. She deposed that about three months ago, on one day, she and PW.1 (her husband) had been to Coolie work and returned home around 05.00 p.m. Her youngest daughter i.e. PW.4, aged 4 years, revealed to her that the accused slept over PW.3 (victim aged 6 years and elder daughter of the witness) where the accused had taken her and PW.3 to his home; police examined her.
PW.9-Doctor examined PW.3 victim and stated that a hole was formed at her cunt and she believes that it must have been due to the touching by the accused.
However, the witness made a U-turn and she stated, in her cross examination, that this case is filed at the compulsion of her mother-in-law (DW.1). A fencing is intervening between the house of her mother-in-law and accused; there have been disputes between her mother-in-law and the family of accused. Father of accused died about a year ago. Her mother-in-law had borrowed a sum of Rs.50,000/- from the father of accused while he was alive and after his death, when the mother of accused demanded her
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mother-in-law to repay the debt, there was altercation between them. Bearing grudge over it, her mother-in-law made PW.1 to file the complaint. Doctor told her about the hole in the cunt of PW.3.
She does not know as to whether her mother-in-law made the
Doctor to make such revelation. She did not observe any bleeding at the private parts of PW.3. They intending to compromise the case since nothing has happened.
It is pertinent to note that PW.2 lastly deposed in her cross examination as “we are intending to compromise the case since nothing happened”. Given such a statement, it is difficult to comprehend and hard to believe such statement by the PW.2 for the reason that the very question of compromise does not arise if nothing has happened. As already noted hereinearlier, the question of any sort of compromise arises only following any dispute whether criminal dispute or civil dispute. It is worth noting that PW.2 corroborated the evidence of her husband (PW.1) by deposing that her younger daughter (PW.4) aged 4 years revealed to her that the accused slept over her elder daughter
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when accused had taken her and PW.3 into his home;
PW.9-Doctor examined her elder daughter and reported that a hole was formed at her cunt and she (PW.2) believes that it must have been due to the touching by the accused.
What can be construed to mean from the statement of PW.2 that accused slept over her elder daughter and she believes that a hole was formed at her cunt due to the touching by the accused.
It is apparent that the purport of such statement by PW.2 is that a hole was formed at the cunt of her daughter when the accused slept over the girl child touching her genital.
As far as the fact of PW.2 presenting an altogether different story in her cross examination that there was a money dispute between her mother-in-law and the accused whereupon her mother-in-law made her son (PW.1) to file this case against the accused is concerned, suffice it to say that the PW.2 made feeble attempt to delink the accused and winch him out of this criminal case. However, PW.2 miserably failed in her objective. There was a slip of her tongue in the direction of the prosecution case when
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she categorically stated, in her cross examination, that Doctor told her about the hole in the cunt of PW.3. By making such a statement, she fortified the prosecution case and the false narrative presented by her vis-a-vis deliberately implicating the accused in this case at the instance of her mother-in-law has simply petered out.
The most crucial point to be noted is that under amended
Section 157 of the Bharatiya Sakshya Adhiniyam, 2023, it is mandated that nothing in this Section shall disentitle the person to rely on any part of the evidence of such a witness who does not support the prosecution case in toto. Thus, the Court can safely rely upon the part of the evidence of such witness which corroborated the prosecution case. Hence, the Court can place reliance on the testimony of PW.2 in her chief examination supporting the prosecution case.
(iii)PW.3 is the victim girl of 6 years old and preliminary questions were put to her to ascertain as to whether she was capable of giving evidence. From the answers given by the child
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witness to the preliminary questions, the Court is satisfied that child witness is capable of giving evidence and went on to record her evidence. She testified that PWs.1 and 2 are her parents.
She is studying 1st Class and LW.4 namely Thanvitha (PW.4) is her sister. LWs.10 and 11 are her grandparents. She did not wish to state anything.
At this stage, the further chief examination of the child witness was deferred at the request of learned Public Prosecutor.
The witness appeared about 12 days later for her further chief examination. She deposed to the effect that the house of the accused is situated one house beyond her house. Once she went to the house of the accused to play as he had called her to his house. He gave her and her sister (PW.4) chocolate. It is true that
she was taken to a Lady Doctor since she was experiencing
pain; accused laid on her and as such, she felt pain at her
private part. A Woman Police examined her.
This witness was subjected to the cross examination by the learned defence counsel suggesting that she gave false evidence
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when she was offered a chocolate by the learned P.P.
Apropos to such suggestion, it is rather preposterous suggestion owing to the fact that a child of six years would give false evidence only for the sake of a chocolate. She further stated, in the cross examination, that whenever her parents go for Coolie work, she and her sister (PW.4) stay in the house of accused. In this context, the learned Public Prosecutor drew the attention of the
Court to the evidence of the de facto complainant and father of the victim girl as he deposed, in his chief examination, that accused is the son of his paternal aunt. It goes without saying that the family of PWs.1 and 2 and the family of accused are immediate relatives and this fact inspires the confidence of the
Court in the testimony of PW.3 child victim that whenever her parents go for Coolie work, she and her sister stay in the house of accused. However, she stated that accused did not do anything to her; he did not remove her underwear and laid down over her.
At the same time, she denied the suggestion by the defence that she never experienced stomach pain but she added that she was
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taken to a Lady Doctor by her paternal grandmother (DW.1), one
B.Nandu (LW.12) and her parents. She would further state that the Lady Doctor examined her private part and prescribed syrup asking her to take it for three days. She denied the suggestion by the defence that she never complained any pain and that she stated in her chief examination at the instance of her grandmother. The witness concluded by stating that “the man just now produced in the Court Hall is Nagesh uncle”. Point to be noted is that said Nagesh uncle is none other than the accused herein. It is imperative to add that the witness looked at the accused while entering the Court Hall and before a shrouded wooden frame is placed in front of her to ensure that accused was not visible to her.
(iv)In this case, PW.4 is a prominent witness who is the second daughter of PWs.1 and 2 and own sister of the victim girl.
It may be reiterated that victim girl is 6 years old while this child is 4 years old. At the cost of repetition, it is the specific case of the prosecution that when the parents of PW.3 and this child were
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away from home on Coolie work and when these two sisters were playing near the house of the accused, he too pretended to be playing with them and then took them inside his house stating that he would give chocolates to them; he took them into a room, removed the underwear of PW.3 victim girl, took off his pant, inserted his penis into the cunt of victim girl and then the sperm was ejaculated and fallen on thighs of the victim girl and on the floor; he wiped the sperm with his knickers. It is worthwhile to note that the accused committed such abominable and beastly act when sister of the victim girl (this witness) was very much present and watching the reprehensible and foul act of ravaging the victim girl by the accused. Put differently, the PW.4 child witnessed the entire heinous act committed by the accused with the victim girl.
It may be mentioned that the innocent 4 years old girl child cannot be expected to figure out as to what act was being done by the accused with her elder sister by lying on her but this innocent child was simply looking at the scene without knowing as to what was happening.
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Preliminary questions were put to PW.4 to ascertain as to whether she was capable of giving answers with the questions but she answered the preliminary questions correctly thereby, assuring the Court that the child witness is a fit witness capable of giving evidence.
The child witness testified that Ramu and Kalyani (PWs.1 and 2) are her parents; LWs.10 and 11 are her grandparents. She knows Nagesh uncle (accused) who would visit her house.
She further testified that accused removed his drawer and slept on her elder sister (PW.3); her sister was crying; she informed the same to PW.2 (her mother) as well as an Aunt (Doctor); her elder sister felt pain at vagina from where there was bleeding;she was very much present in the same room where
Nagesh uncle (accused) slept over her elder sister; her family members took her sister to a Doctor Aunt; Police Aunt recorded her statement.
[Emphasis supplied]
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While the child witness (PW.4) vividly described the incident in her chief examination, her cross examination can be termed as “perfunctory” in nature since except the suggestion that her statement in her chief examination was tutored by the police, not a single question is put to her to elicit any infirmity in her chief examination.
(v)PW.5 is the Woman S.I. who recorded the statement of the victim girl at the instructions of S.D.P.O., Kothagudem and such recording of statement was videographed by W.P.C. This witness presented the true account of the incident stating that the victim girl narrated her the incident.
(vi)PW.6 is the Woman P.C. who stated to have videographed the recording of statements of PWs.3 and 4 in her
Cellphone; the same is downloaded in the C.D. along with
Sec.63 (4) (c) Certificate under B.S.A. Act. M.O.1 is the C.D. and
Ex.P3 is the Certificate.
(vii) PW.7 is the Headmistress of M.P.UPS., Mulakalapally and who testified that PW.3 has been studying in this School in
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1st Standard; at the request of Police, Yellandu, she issued Study and Conduct Certificate of PW.3 by verifying the Admission
Register No.647, dated 01.07.2024; as per the said Register,
PW.3’s Date of Birth is 20.11.2018.
(viii) PW.8 is a Videographer who stated to have videographed the confession made by the accused before two panch witnesses, copied in the Pen Drive vide Ex.P5 and issued 65-B Certificate.
(ix) PW.9 is a Lady Doctor who stated to have been working as Gynaecologist in “Rao’s Specialty Hospital”, Yellandu since 2003. She testified about the victim girl being taken to her hospital and she examining the victim girl.
(x)PW.10 is the Panch Witness for the Scene of offence panchanama as well as the Confession-cum-Seizure panchanama of the accused and who supported the prosecution case.
(xi)PW.11 is Incharge/H.O.D., “Govt.Hospital” at
Kothagudem and who deposed to have been examined the victim
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girl, preserved swabs etc., forwarded the same to R.F.S.L., received the F.S.L. report and issued Final opinion vide Ex.P11.
(xii) PW.12 is the Doctor who stated to have carried out
Potency Test on the accused and found that the accused can perform sexual activity; he issued Ex.P12 Potency Test Report.
(xiii) PWs.13 to 15 are the Investigating Officers who spoke about the part investigation done by them.
(xiv) Accused examined defence witness (DW.1) who has figured as LW.11 in the List of Witnesses in the charge sheet.
A cursory glance over the chief examination of DW.1 indicates that it is the replica of the evidence of PW.2 (her daughter-in-law). On the line of the testimony of PW.2, DW.1 testified that she had borrowed a sum of Rs.50,000/- from the late father of the accused; the accused and his mother came to her house and created the scene demanding the repayment of debt and they came to assault her. Since they disgraced her in the public, she got filed this case through PW.1.
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What has become transparently evident from the statement of DW.1, in her chief examination, is that the said lady concocted a false story to wreak vengeance against the accused and his mother upon the so-called debt transaction; she outrightly stated that she got filed this case through PW.1 as she was humiliated in the public. As already held in the earlier part of this Judgment, the accused took a feeble plea like a house of cards which would crumble by mere touch. The manifestation of DW.1 as a witness has done more harm than good to the defence case and here
Section 22 of the POCSO Act comes into play which postulates punishment for false complaint with the intention to humiliate, extort or threaten or defame anybody. In the instant case,
DW.1 herself explicitly admitted that she got filed this false case through her son, thereby making her liable to be punished under
Section 22 of the POCSO Act. It is elicited in her cross examination that she did not make any police complaint when the accused and his mother abused her, created the scene before her house thereby humiliating her in the village. In her cross
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examination, she admitted it to be true that she got filed false
POCSO case against the accused through PW.1 bearing grudge against the accused for his fracas made before her house demanding the repayment of debt to his late father. In the last line of her cross examination, DW.1 categorically stated as “we intentionally foisted POCSO case against the accused”. Thus, the accused intended to save his skin by winning over the grandmother of the victim child and made her to support the plea set up by the accused. It may be recalled that basically DW.1 has been cited as LW.11 in the List of Witnesses in the charge sheet but she proved to be a turncoat by siding with the accused in a futile attempt to save the accused. The testimony of
DW.1 rendered the defence case nugatory and on the contrary, buttressed the prosecution case painting the accused to be a charlatan and a fraudster who left no stone unturned to defeat the prosecution case. In this scheme of the things, the glaring example is the accused examining the grandmother of victim child as his defence witness. Such a desperation to wriggle himself from
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the case tend to backfire and inspire the confidence of the Court on the prosecution case that since he is the real culprit, he employed stratagem of enlisting the support of the grandmother of the victim child by examining her as a defence witness.
10.Coming to the appreciation of evidence on record, at the outset, it may be set out that this is said to be a barbaric crime of the accused luring two small girls aged 6 and 4 into his house and thrusting his penis into the vagina of 6 year old girl by lying on her after removing her underwear and his pant while the younger girl i.e. 4 years old sister of the 6 years old victim was watching the monstrous act of the accused. It is alleged that the moment he inserted the penis into the vagina of the girl, his sperms spilled on the thighs of the girl and also fell on the floor.
At this stage, the most important point to be noted is that the accused allegedly wiped off the drops of his sperms fell on the floor with his knickers. The learned Public Prosecutor termed the
R.F.S.L. Report to be a crucial piece of evidence to prove the
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prosecution case. The learned Public Prosecutor drew the attention of the Court to Ex.P10 R.F.S.L. Report and Ex.P11
Final Opinion issued by the Doctor. The scrutiny of Ex.P10
R.F.S.L. Report demonstrate that a brown colour shorts with yellow colour thread was forwarded by the Investigating agency to
R.F.S.L. as Item No.5 and the R.F.S.L. gave finding as “human semen spermatozoa are detected on Item No.5”. The Item No.5 is the knickers (shorts) of the accused with which he wiped the drops of semen fell on the floor.This piece of scientific evidence assumes enormous significance to prove the prosecution case that the accused inserted his penis into the cunt of the victim girl and then his semen gushed out thereby, falling on the thighs of the victim girl and also on the floor. Accused rubbed off the semen fell on the floor with his knickers i.e. Item No.5 in F.S.L. Report.
In addition thereto, there is solid evidence tendered by the Lady
Doctor (PW.11) who testified that on 06.07.2024 a 6 years old girl (PW.3) was brought by her mother (PW.2) escorted by
W.P.C.-Shakunthala (PW.6); the victim girl was not in a position to
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speak out the episode and then her mother narrated that on 04.07.2024 her daughter had left her two small daughters at the house of her relatives and left for Coolie work; accused played with the children by giving chocolates; accused disrobed the victim
child and slept over her touching her private part; he
committed sexual abuse over the child. The Doctor further stated that she examined the child, collected her nail clippings, one swab from introitus and one from vagina; on her examination of the perineum (surrounding part of the private part) infantile genitalia noted; minimal redness and contusion over the vulva were present. The witness further stated that mother of the child told that the child took a bath for two days after the incident and changed her clothes. She (Doctor) handed over the swabs to
W.P.C. and Police forwarded the same to R.F.S.L., Warangal which issued Ex.P10 Report with conclusion that semen and spermatozoa was not detected on Item Nos.1 to 4 but detected
on Item No.5 which is undergarments of the accused whereon
semen and spermatozoa were found. Basing on Ex.P10 F.S.L.
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Report, she (Doctor) issued her Final Opinion vide Ex.P11 opining that “on external examination, she observed contusion over
left Libia majora and she noted the same stating that sexual
abuse might have happened”.
In the cross examination of the Doctor, she stated that semen and spermatozoa were not detected on Item Nos.1 to 4 (vaginal swabs, nail clippings etc.). However, the Doctor was quick to add that since the child took bath for two days and changed
the clothes, hence, there is no scope to detect semen and
spermatozoa. At the cost of repetition, it may be noted that human semen and spermatozoa were detected on the brown colour shorts of the accused with which he erased the drops of semen fell on the floor.
Thus, the medical evidence on record is paramount in linking the accused to the crime. Be it noted that the explicit evidence of the Lady Doctor could not be shaken in the cross examination by the defence. In other words, there is nothing in the cross examination to impair the credit of the Doctor.
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There is another Doctor examined as PW.9 and who is a
Gynaecologist in “Rao’s Specialty Hospital” at Yellandu. The testimony of this Lady Doctor is to the effect that on 05.07.2024 at 05.00 p.m., the victim girl and her mother came to her complaining fever to the child; upon her examination, she found the temperature normal; the child complained abdominal pain and upon her examination, her abdomen was normal; PW.2 (mother of the victim child) told that on the previous day
a youth took the victim girl inside his house and laid himself
on her and she (mother of the victim) requested to confirm
as to what had happened to the child; she examined external genitalia of the child and her hymen was not intact; the vaginal hole had become bit bigger.
In her cross examination, the Doctor stated to have prescribed antibiotics and pain killer tablets to the child; the vagina of victim child was admitting one little finger; in case if the child played without underwear in muddy area, there is no scope of expansion of her cunt; there is possibility of the
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rupture of hymen if and when the child jumps off from a height.
It can be recalled that according to the Lady Doctor (PW.9), the hymen of the victim child was not intact and the vaginal hole had become bit bigger; the vagina was admitting one little finger would establish the fact of accused inserting his penis into the vagina of the girl child, thereby rupturing the hymen and vaginal hole becoming bit bigger. In this regard, it is to be noted that a 6 year old girl will not normally jump off from a height leading to the rupture of hymen. Hence, the feeble attempt of the defence that hymen would rupture in the given circumstances and putting such questions to the Doctor does not render any help to the accused.
What emanated from the aforesaid discussion vis-a-vis scientific and medical evidence that the accused has committed penetrative sexual assault on a 6 year old girl.
Referring to the other evidence on record, the evidence of 4 year sister of the victim girl is of paramount consideration since
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that child was an eyewitness before whom the accused resorted to savage and brutal act of subjecting the victim girl to penetrative sexual assault by denuding her and himself and then resorting to despicable act of raping the child.
PW.10 is another prime and material witness who has figured as the panch witness for the Scene of Offence as well as
Confession-cum-Seizure panchanama of accused.
The witness is Panchayat Secretary and LW.14 stated to be working as Anganwadi Teacher. On 06.07.2024 upon the instructions of the M.P.D.O. (Mandal Parishad Development
Officer), he and LW.14 proceeded to Thangellagadda crossroads under Ragaboinagudem Grampanchayat. Police asked him and another panch LW.14 to inquire the accused whereupon they took the accused aside and questioned as to why was he under police custody. He gave his name as Bhukyha Nagesh, S/o Vasram,
R/o Thangellagadda and he was earning a living by doing
Masonry. The accused further confessed that the house of one
M.Ramu (PW.1) was adjacent to his house; when he questioned
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as to what had happened, the accused confessed that on 04.07.2024 he alone was present at his house; the area surrounding his house was deserted; he saw PWs.3 and 4 children of PW.1 playing near their house; he developed sexual orientation; he brought both the children inside his house on the pretext of playing and offered chocolates; then he untied the undergarment of PW.3; he took off his trousers, then he laid himself on the child; he inserted his penis into the vagina of PW.3; he ejaculated semen on the thighs of PW.3 and on the floor; he cleaned the remnants of semen fallen on the thighs of PW.3 and on the floor with his knickers; he kept such knickers on a plastic container kept on an almirah. Police recorded the said confession under Ex.P6.
The witness further deposed that he would show the knickers; then he, another panch and police accompanied the accused to his house, around 04.00 p.m. they reached the house of the accused. His house is consisting of three rooms with tin roof; he took them to the almirah in third room, took out the
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knickers atop a plastic container on the top of almirah and shown the same to them. The knickers is in ash colour and it is marked as M.O.2 under the cover of Ex.P7 Seizure panchanama by pasting the chits to M.O.2 containing the signatures of him and
LW.14 (witness identified M.O.2).
The witness would further testify that D.S.P. drew the rough sketch of the scene of offence noting the topography of the house under Ex.P8 scene of offence panchanama and obtained the signature of him and LW.14 (witness identified his signature).
The most crucial point to be noted is that the other evidence on record that the accused cleaned the floor strewn with the semen drops with his knickers. This part of confession by the accused secured corroboration from the contents of Ex.P10 FSL report wherein it has been categorically noted that human semen and spermatozoa are detected on a brown colour shorts with yellow colour thread. When these two facts are juxtaposed, it has become abundantly clear that the accused wiped the floor with his knickers, thereby cleaning his semen drops.
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So far as the evidence of PW.10 is concerned, it is solid and concrete evidence and the confession made by the accused has to be believed since such confession led to discovery of the M.O.2 knickers as contemplated under Section 23 of the Bharatiya
Sakshya Adhiniyam, 2023. It is worth noting that except making bald suggestions denying the chief examination of the witness, the evidence of this prominent witness has not been shaken at all.
The testimony of panch for the Scene of Offence and
Confession-cum-Seizure panchanama (PW.10) stood corroborated by the evidence of the Investigating officer who also stated that the house of the accused is consisting of three tin sheeted rooms; he went into third room and showed his knickers which was kept on a plastic box; the knickers is of ash colour with yellow thread to tie it and white stains on it; accused took policemen and the panch witnesses in the middle room and confessed that in that room, he had wiped the sperm with his knickers; he seized M.O.2 in the presence of the mediators.
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In the cross examination, the defence elicited from the
Investigating officer (I.O.) that PW.4 did not state that she stated to her father (PW.1) the act committed by the accused. Witness added that PW.4 stated that she narrated the incident to her mother. The witness further stated that the Doctor disclosed that the vagina of PW.3 was ruptured and First Aid was provided and a hole was visible in the vagina. Rest of the cross examination of the I.O. is routine in manner.
PW.15 is Second I.O. upon whose requisition II Additional
Judicial Magistrate of First Class, Kothagudem recorded the
statements of PWs.1 and 2 under Section 183 of the B.N.S.S. vide
Exs.P16 and P17; on 23.07.2024 he obtained Analysis Report from R.F.S.L., Warangal vide Ex.P10, Ex.P11 Medical opinion from
PW.11 and after the completion of his investigation, he laid the charge sheet. It is relevant to note that only single suggestion is given to this witness that he did not undertake any investigation and the contents of his chief examination are not true. The witness denied the suggestion.
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11.The learned defence counsel laid much emphasis on the technical points like discrepancies in the dates of admission to hospital, and dates elicited from the witnesses, inconsistencies in the testimony of Investigating officers regarding the timings etc.
Put differently, the learned defence counsel could not pick holes in the evidence on record concerning the accused committing the offence but rather confined his arguments to the timings only. In this respect, it must be noted that when the evidence on record is directly connecting to the accused and when such evidence remained unshaken and discredited, such solid and concrete evidence cannot be discarded giving significance to undue and trivial omissions concerning the discrepancies in the timings.
It is significant to note that Sec.29 of the POCSO Act spelled out that when a person is prosecuted for committing an offence of sexual assault against a minor, the Special Court trying the case “shall presume” the accused to be guilty. While so, the accused made feeble, unconvincing, ineffectual, flimsy and implausible effort to rebut the presumption under Section 29 of the POCSO
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Act by examining DW.1 (grandmother of the victim) but he utterly failed to even remotely connect the version put forth by DW.1 with the offence committed by the accused. It is also well settled law that the insignificant improvements and deficiencies in the prosecution case are not material unless it affects the core of the prosecution case.
The learned Public Prosecutor alluded to the very cause behind the accused committing this abominable, loathsome, obnoxious, horrifying and nauseating crime is that he is addicted to watching pornography in the Cell phone being alone in the house, then he happened to see the neighbouring two children (PWs.3 and 4) playing in the courtyard of beside his house, the sleazy scenes in the Cell phone stimulated his sexual urge; he could not resist his impulse; devil in his flesh could not control itself and then he resorted to the despicable act of raping a six year old child and he was so blinded by his erotic rage that he ravished six year old child in the very presence of her four year
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old sister. This factor holds mirror as to how hot was he with his lustfulness.
12.A sum and substance of the above discussion is that the prosecution adduced best available evidence to prove the charge under Section 6 of the POCSO Act for the offence of “aggravated penetrative sexual assault” and Section 65(2) of the B.N.S. against the accused and as such, he is liable to be convicted for the said offences. Points No.1 and 2 are answered accordingly.
13.In the result, the accused is found guilty for the offences punishable under Section 65(2) of B.N.S. and Section 6 of the
POCSO Act, 2012 and accordingly, the accused is convicted under
Section 258(2) of B.N.S.S. for the said charges.
Dictated to the Stenographer Grade-I, transcribed by him, corrected and
pronounced by me, in the open court on this the 10 th day of April, 2025.
PRINCIPAL SESSIONS JUDGE,
Bhadradri Kothagudem, FAC.Fast Track Sessions Judge for Expeditious Disposal of Cases of Rape and Protection of Children from Sexual Offences (POCSO) Act At Kothagudem.
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QUANTUM OF SENTENCE
The accused having found guilty for the offences punishable under Section 65(2) of B.N.S. and Section 6 of POCSO
Act, questioned with regard to the proposed quantum of sentence, he submitted that he did not commit the alleged offence. He is a
Mason, he is a bachelor. He has to look after his mother.
Having regard to the gravity of the offence, much lenient view cannot be taken in awarding the sentence.
The minimum sentence provided under Section 6 of the
POCSO Act is punishable not less than 20 (twenty) years but which may extend for Imprisonment for Life, which shall mean imprisonment for remainder of natural life of that person and shall also be liable to Fine or with Death.
It is not a case to be treated as the rarest of rare and hence, it does not deserve the awarding of Capital punishment.
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Accordingly, the accused is sentenced to suffer
Imprisonment for Life and to pay a Fine of Rs.1,000/- (Rupees
One thousand only) for the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012, in default of payment of Fine, he shall undergoSimple Imprisonment for a period of (3) Three months.
In view of the Section 42 of POCSO Act, 2012 and since the accused is sentenced under Section 6 of the POCSO Act, 2012, no separate sentence is passed for the offence under Section 65(2) of B.N.S.
Accused is in jail. The remand period of the accused from 07.07.2024 to till date shall be given set off under Section 468 of
B.N.S.S.
The Office is directed to furnish a free copy of the
Judgment to the accused as mandated under Section 404 of
B.N.S.S. enabling him to prefer an appeal within THIRTY days from today.
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Ex.P5 (Pen-Drive), M.O.1 (C.D.) and M.O.2 (Knickers) shall be destroyed after expiry of the appeal time.
Dictated to the Stenographer Grade-I, transcribed by him corrected and
pronounced by me, in the open court on this the 10 th day of April, 2025 .
PRINCIPAL SESSIONS JUDGE,
Bhadradri Kothagudem, FAC.Fast Track Sessions Judge for Expeditious Disposal of Cases of Rape and Protection of Children from Sexual Offences (POCSO) Act At Kothagudem.
:: APPENDIX OF EVIDENCE ::
WITNESSES EXAMINED ON BEHALF OF PROSECUTION
P.W.1M.Ramu
P.W.2M.Kalyani
P.W.3Victim
P.W.4M.Thanvitha
P.W.5P.Ramadevi
P.W.6S.Shakunthala
P.W.7G.Sunitha
P.W.8G.Srinivasa Rao
P.W.9Dr.D.Kalpana
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P.W.10K.Chandrashekar
P.W.11Dr.Sagarika
P.W.12Dr.G.Bansilal
P.W.13B.Satyanarayana
P.W.14Sk.Abdul Rehman
P.W.15N.Chandra Bhanu
WITNESSES EXAMINED ON BEHALF OF DEFENCE
D.W.1 M.Kanthamma
DOCUMENTS EXHIBITED ON BEHALF OF PROSECUTION
Ex.P-1Complaint.
Ex.P-2Sec.180 B.N.S.S. statement of PW.1.
Ex.P-3Sec.63 (4) (c) of B.S.A. Certificate.
Ex.P-4Study and Conduct Certificate of victim (PW.3) issued by PW.7.
Ex.P-5Pen Drive.
Ex.P-6Confession panchanama.
Ex.P-7Seizure panchanama.
Ex.P-8Scene of offence panchanama
Ex.P-9O.P.No.3671 issued under Medico-Legal Case by the “Govt.General Hospital”, Bhadrachalam.
Ex.P-10 R.F.S.L. Report, Warangal.
Ex.P-11 Final Opinion.
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Ex.P-12 Potency Test Report.
Ex.P-13 First Information Report (F.I.R.)
Ex.P-14 Sec.183 B.N.S.S. statement of PW.3.
Ex.P-15 Sec.183 B.N.S.S. statement of PW.4.
Ex.P-16 Sec.183 B.N.S.S. statement of PW.1.
Ex.P-17 Sec.183 B.N.S.S. statement of PW.2.
DOCUMENTS EXHIBITED ON BEHALF OF DEFENCE
--Nil--
MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION
M.O.1: C.D.
M.O.2: Knickers
PRINCIPAL SESSIONS JUDGE,
Bhadradri Kothagudem, FAC.Fast Track Sessions Judge for Expeditious Disposal Of Cases of Rape and Protection of Children from Sexual Offences (POCSO) Act At Kothagudem.