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IN THE COURT OF FAST TRACK SPECIAL JUDGE FOR EXPEDITIOUS
TRIAL AND DISPOSAL OF RAPE AND POCSO ACT CASES, RANGA
REDDY DISTRICT AT L.B. NAGAR
Tuesday, the 20th day of July, 2021
Present: Sri R.Raghunath Reddy,
Special Judge for Trial of cases under POCSO Act-
cum-IX Addl. District & Sessions Judge (FTC), Ranga Reddy District at L.B. Nagar. FAC. Fast Track Special Judge for Expeditious trial and disposal of Rape and POCSO Act Cases, Ranga Reddy District at L.B.Nagar.
Sessions Case No.1188 of 2019
1 Name of the complainantThe State of Telangana through the Inspector of Police, Balapur Police Station.
2 Name of the accusedOmer Bin Hassan S/o.Hassan Bin Naser Bafana, aged 25 years, Occupation: Labour, R/o. New HUDA Colony, Wadi-e-Musthafa, Jalpally Village, Balapur Mandal, Ranga Reddy District.
3 Offences complained ofUnder Sections 363, 302 and 377 of IPC and Section 5 (m) of the POCSO Act.
4 Crime No. & Name of Police171 of 2019 of Balapur Police Station. Station 5 Plea of the accusedPleaded not guilty 6 Finding of the CourtFound guilty for the offences under Sections 363, 377 and 302 of the Indian Penal Code and Section 5(m) read with Section 6 of the POCSO Act.
7 Sentence or orderIn the result, the accused is convicted for the offences under Sections 363, 377 and 302 of the Indian Penal Code and Section 5 (m) read with Section 6 of the POCSO Act, under Section 235 (2) of the Code of Criminal Procedure, and sentenced to undergo;
(a) rigorous imprisonment for FIVE years and pay a fine of Rs.1,000/- (Rupees one thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 363 of the Indian Penal Code;
(b) rigorous imprisonment for TEN years and pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 377 of the Indian Penal Code;
(c) imprisonment for LIFE and pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 302 of the
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Indian Penal Code; and
(d) rigorous imprisonment for TEN years and pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 5
(m) read with Section 6 of the POCSO Act. MOs No.1 to 8 and 10 to 12 deposited into the Court vide CPR No.01of 2021 shall be destroyed and MO-9, Samsung cell phone, shall be confiscated to the State after expiry of appeal time. The substantial sentences of imprisonment imposed against the accused shall run concurrently. As seen from the record, the accused is in jail in this case since 13.05.2019.
This case is coming before me on 07.07.2021 for final hearing in the presence of Sri C.Ramu, In-charge Special Public Prosecutor for the State and of Sri G.Srihari Reddy, Legal Aid Counsel for the accused and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T:: ::
The Inspector of Police, Balapur Police Station, laid a charge sheet against the accused in Crime No.171 of 2019 for the offences punishable under Sections 363, 302 and 377 of the Indian Penal Code and Section 5 (m) of the Protection of
Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’).
2.The sum and substance of the case of the prosecution as alleged in the charge sheet is: The accused is a resident of New HUDA Colony, Wadi-e-Musthafa,
Jalpally Village, Balapur Mandal, Ranga Reddy District. He is addicted to vices like consuming Gutkha, Ganja, etc. Due to poorness, his parents could not perform his marriage. Having unable to control the sexual desire, he intended to get fulfilled his lust with someone. In furtherance of his said intention, on 08.05.2019 at about 09:00 PM, when he was proceeding towards Water Tank on foot, on the way, he found the deceased boy, aged about seven years, who hails from the said locality, coming in his opposite direction by holding a fifty rupee currency note in his hand and then he (accused) hatched a plan to fulfill his sexual desire with the said boy;
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lured him with deceitful words by offering chocolate, took him into an open place of one Khaja Moinuddin, surrounded by a compound wall, removed his pant and inserted his finger into his anus by force. The deceased boy, then, raised hue and cry and then the accused held him (deceased boy) firmly with hands and continued the unnatural sex. The deceased boy, having unable to bear the pain, raised hue and cry as “Allah, Allah”, due to which, the accused got irritation and lifted the deceased boy up with hands and hit him to the ground several times by force, due to which, the deceased boy sustained severe injuries and died on the spot.
3.On 09.05.2019 at about 3:25 AM, the father of the deceased boy lodged a report with the Inspector of Police, Balapur Police Station (LW25), stating that his son (deceased boy), who went for buying a cool drink (Frooti), did not turn up and then he went in search of him and found some gathering of public at the compound wall of one Khaja Moinuddin, and then he went there and found his son (deceased boy) lying dead. Based on the said report, the Inspector of Police (LW25) registered a case in crime No.171 of 2019 for the offence under Section 302 of the
Indian Penal Code and took up the investigation. During the course of investigation, he rushed to the scene of offence and found the dead body of the deceased boy in the bushes in a pool of blood under a tree. He pressed the clues team into service.
The clues team in-charge officer by name Kishore (LW16) came to the scene of offence and collected blood stained earth, control earth, collected swab, control swab and one small stone having blood stains as material evidence from the scene of offence under a panchanama. The dog squad also visited the scene of offence to trace out the offender and the dog led the police officials up to Majid Road and it could not move forward therefrom. The Inspector of Police (LW25) collected
CCTV footage from the house of Rayees Ahmed (LW9) situated nearby the scene of offence. The said Rayees Ahmed (LW9) expressed suspicion over one Omer (accused) who resides in the said locality. The Inspector of Police (LW25) got
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shifted the dead body of the deceased boy to Osmania General Hospital, Hyderabad for post mortem examination. He conducted inquest panchanama over the dead body of the deceased in the presence of Mohammed Allahuddin Patel (LW12) and
Mohammed Chand Pasha (LW13) at the mortuary of Osmania General Hospital,
Hyderabad. During the said panchanama, he seized the clothes of the deceased boy.
After completion of post mortem examination, he handed over the dead body of the deceased boy to his relatives. He also examined and recorded the statements of the witnesses. On 13.05.2019, in the morning hours, D.Naveen Kumar, HC 3069 (LW19), N.Mallesh, PC 5846 and K.Jagadish, HG 1810 (LW21) apprehended the accused at his residence and produced him before the Inspector of Police (LW25).
On interrogation, the accused confessed to have committed the offence. In pursuance of the said confession, the clothes wore by him and a Samsung cell phone used by him were seized under a seizure report. Before sending the accused to judicial remand, he was subjected to potency test and Dr.Sugatha (LW18), who conducted the potency test, opined that there was nothing to suggest that the accused is not capable of performing the act of sexual intercourse. After such examination, the accused was remanded to judicial custody. The said Dr.Sugatha (LW18) conducted autopsy also over the dead body of the deceased boy and opined that the death was due to head injury and blunt injury on chest and abdomen. All the material objects collected in the case were forwarded to Telangana State Forensic
Science Laboratories for examination and report. Dr.G.Swarna Rani (LW23), who examined the material objects, issued her report. The Inspector of Police (LW25) got conducted the test identification parade of the accused by the Magistrate concerned. The investigation revealed that Smt.Rehana Begum and Mohammed
Munawar (LWs 5 and 6), whose house is nearby the scene of offence, on hearing the cries of the deceased boy, went to the scene of offence and with the help of cell phone flash light, found the dead body of the deceased boy in a pool of blood and
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on seeing them, the accused moved aside and hide himself beside the compound wall and when the said witnesses tried to catch him, he fled away. After due investigation, the Inspector of Police (LW25) filed charge sheet against the accused for the above offences.
4.Originally, the above charge sheet was filed in the Court of
Metropolitan Sessions Judge-cum-I Additional District and Sessions Judge, Ranga
Reddy District, where it was registered as S.C.No.1188 of 2019 for the offences under Sections 363, 302 and 377 of the Indian Penal Code and Section 5 (m) of the
POCSO Act and later, the same was transferred to the Court of Special Judge for trial of cases under the POCSO Act-Cum-IX Additional District and Sessions Judge (FTC), Ranga Reddy District and from the said Court, again the same was transferred to this Court, on its establishment, for trial and disposal.
5.When the accused was produced before the Court from the jail, he requested the Court to appoint a Government Advocate for him stating that he has no means to engage the Advocate. Hence, this Court appointed Sri G.Srihari Reddy,
Panel Advocate, as legal aid counsel for the accused.
6.Copies of documents were supplied to the accused as required under
Section 207 of the Code of Criminal Procedure. Upon consideration of the material available on record and after hearing the learned Special Public Prosecutor and the learned counsel for the accused, charges under Section 363, 377 and 302 of the
Indian Penal Code and Section 5 (m) read with Section 6 of the POCSO Act were framed against the accused, read over and explained to him, to which he pleaded not guilty and claimed to be tried.
7.In order to substantiate its case against the accused, the prosecution examined PWs 1 to 15 and got marked Exs.P1 to P15 and MOs 1 to 12.
8.PW1 is the father of the deceased boy as well as de facto complainant.
The report lodged by him with the police is marked as Ex.P1. PW2 (Smt. Rehana
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Begum) and PW3 (Mohd. Munawar) are stated to be the eyewitnesses to the incident. PW4 (Omer Baom) is cited as a panch for scene of offence panchanama conducted at the scene of offence. Scene of offence panchanama and rough sketch are marked as Ex.P2 and P3 respectively through him. The blood stained earth, control earth, collected swab, control swab and a stone with blood stains seized from the scene of offence are also marked as MOs 1 to 5 respectively through him.
PW5 (Mohd.Allahuddin Patel) speaks about his acting as one of the panchas for inquest panchanama (Ex.P4) conducted over the dead body of the deceased boy.
PW6 (K.Kishore), Assistant Sub-Inspector of Police in Rachakonda Police
Commissionerate, at the relevant time, speaks about his visiting the scene of offence as in-charge of clues team. PW7 (K.Shekar), Revenue Inspector, Balapur Mandal, at the relevant time, is stated to be one of the panchas for the confession and recovery panchanama. The relevant portion in confession panchanama and the seizure panchanama of MOs 6 to 9 are marked as Ex.P5 and Ex.P6 respectively. MO6 is
White, Meroon, Blue lines full hands shirt. MO7 is blue colour night pant. MO8 is a pair of red colour chappal. MO9 is a samsung cell phone. PW8 (R.Laxman), Police
Constable in CID, Amberpet, speaks about his visiting the scene of offence along with dog squad. PW9 (Dr.M.Sugatha), Associate Professor in Department of
Forensic Medicine, Osmania Medical College, speaks about her conducting post mortem examination over the dead body of the deceased boy and also conducting potency test upon the accused. Ex.P7 to P10 are marked through her. PW10, (N.Mallesh), PC 5846 of Balapur Police Station, speaks about his apprehending the accused at his house and producing him before the Inspector of Police. PW11, (P.Nagaraju), Sub-Inspector of Police, Balapur Police Station, states that he went to the scene of offence and preserved the same. PW12 (Smt.Kavitha Karnati), VI
Additional Metropolitan Magistrate, Cyberabad at L.B.Nagar, states about her
holding Test Identification Parade of the accused and preparing a report thereof
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under Ex.P11. PW13 (Dr.G.Swarna Rani), Assistant Director, TSFSL, Hyderabad, speaks that she examined the material objects sent to her in this case and issued a report thereof under Ex.P8. PW14 (Rayees Ahmed) is examined to speak that he copied the CCTV footages recorded in the CC cameras arranged at his house, which is situated nearby the scene of offence, into a CD (Ex.P12) and handed over the same to the Inspector of Police. PW15 (V.Saidulu), Inspector of Police, Balapur
Police Station, at the relevant time, is the Investigating Officer in the case.
9.After closure of prosecution evidence, when the accused was examined under Section 313 of the Code of Criminal Procedure with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, he denied the same. He, however, did not choose to adduce any evidence on his behalf.
10.Heard the learned Special Public Prosecutor and the learned counsel
for the accused and perused the written arguments filed by the learned Special
Public Prosecutor.
11.Now the point that arises for determination is whether the prosecution is able to prove its case against the accused for the offences punishable under
Sections 363, 377 and 302 of the Indian Penal Code and Section 5 (m) read with
Section 6 of the POCSO Act, with which he is charged, beyond reasonable doubt?
12.The case of the prosecution is that on 08.05.2019 at about 09:00 PM, when the deceased boy, aged about seven years, went out of the house to buy a cool drink, the accused intercepted him, took him away to an open place of Khaja
Moinuddin surrounded by a wall situated at Wadi-e-Mustafa, Jalpally Village,
Balapur Mandal, Ranga Reddy district, by offering a chocolate, inserted his finger into his anus with intent to fulfil his sexual desire and when the deceased boy raised hue and cries, he (accused) killed him by lifting up and hitting him to the ground for several times.
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13.PW1 is the father of the deceased boy. He has stated that on 08.05.2019 at about 08:00 PM, he returned home from his centering work and on his return, the deceased boy, who is his third son, insisted him to get a Frooti cool drink for him and then he gave Rs.50/- to the deceased boy and asked him to get the cool drink and then the deceased boy went out of the house, but, did not return home and then, he went in search of him and at about 09:00 or 09:30 PM, he found the gathering of public at the compound situated nearby his house and he went there and found his son (deceased boy) lying dead. He has further stated that he found that the pant of the deceased boy was removed and there was blood on the face of the deceased boy and by the time he went to the spot, two police people were present there. He has also stated that from the scene at the said place, he understood that somebody had unnatural sex with his son (deceased boy) and killed him. It is also stated by him that his son (deceased boy) was aged six years and five months at the time of the incident and that on 09.05.2019 at about 03:00 AM, he went to the police station and lodged a written report (Ex.P1).
14.PW2 has stated that she resides at Wadi-e-Mustafa, Jalpally Village; that she knows PW1; that on 08.05.2019 at about 09:00 PM, she went to the terrace of their house for prayer (namaz) as it was Ramzan month and when she was doing namaz, she heard the noise “bachao, bachao” (save, save) from the open place surrounded by compound wall situated towards the North of their house and then she called her son-in-law Munawar (PW3) and herslef and Munawar (PW3) went towards the place from where she heard the noise and since it was dark at that time,
Munawar (PW3) switched on the light of his cell phone and in the said light, they saw a boy lying near a tree and his pant was found open and there was blood on his face.
15.PW3 has stated that he knows PW1 and the deceased boy is the son of
PW1; that in the year 2019, he was residing in the house of PW2, being her son-in-
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law, at Wadi-e-Mustafa, Jalpally Village; that on 08.05.2019 after 09:00 PM, when he was in the house, PW2 was doing namaz on the terrace as it was Ramzan month and she (PW2) told him that some noise is coming from the compound situated beside their house and then himself and PW2 went towards the said place and found a boy lying in the said compound and there was blood on his face and his pant was removed from waist.
16.PW15/Investigating Officer has stated that on 09.05.2019 at 03:25
PM, he received a written report (Ex.P1) from PW1 and based on the said report, he registered a case in Crime No.171 of 2019 for the offence under Section 302 of the
Indian Penal Code and issued FIR (Ex.P13) and thereafter, he rushed to the scene of offence and found the dead body of the deceased in a pool of blood in the bushes and he pressed the clues team into service and PW6 visited the scene and collected the bloodstained earth (MO1), controlled earth (MO2), Swab (MO3), controlled swab (MO4) and a small stone having blood stains (MO5) as material evidence from the scene of offence under a panchanama (Ex.P2) and he has drafted a rough sketch (Ex.P3) and also taken the photographs (Ex.P14) of the scene of offence. He has further stated that he shifted the dead body of the deceased boy to Osmania
General Hospital, Hyderabad for post mortem examination and he has taken the photographs (Ex.P15) of the dead body at the mortuary and conducted inquest over the dead body of the deceased in the presence of PW5 and another. He has also stated that he seized a black pant with white lines (MO10), brown colour full shirt with yellow lines (MO11) and sandals (footwear) (MO12) from the dead body of the deceased. It is also stated by him that after post mortem examination, he handed over the dead body to the relatives of the deceased boy.
17.PW4 has stated that on 09.05.2019, between 08:30 and 09:00 AM, he was going to his construction site at Wadi-e-Mustafa and on the way, he found the police people near a compound wall and the C.I. of Police (PW15) called him and
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told him that a boy was murdered in the said compound and asked him to act as a panch for a panchanama to be conducted there. He has further stated that the C.I. of
Police (PW15) prepared a panchanama (Ex.P2) and also drafted a rough sketch (Ex.P3) and obtained the signatures of him and Syed Ahmed (LW11) on the said panchanama and sketch. He has also stated that the dead body of the boy was lying there and the police seized the blood stained earth, control earth, stone, etc., from the said place and pasted their signed chits on the said items.
18.PW5 has stated that he knows PW1 and that the deceased boy is the son of PW1 and on 09.05.2019, between 09:30 and 10:00 AM, he went to Osmania
General Hospital, Hyderabad to see the dead body of the deceased boy and the dead body of the deceased boy was on a stretcher and there were injuries on the forehead and chest and he understood that those injuries were caused with a stone. He has further stated that the police have noted down the injuries found on the dead body of the deceased boy and that himself and Mohd.Chand Pasha (LW13) have signed the panchanama as panchas.
19.PW9 is the doctor. She has stated that on 09.05.2019, she received a requisition from the Station House Officer, Balapur Police Station, to conduct autopsy over the dead body of the deceased boy and on the same day, she conducted autopsy in between 11:35 AM and 12:30 PM and during the said autopsy, she found 11 ante mortem injuries on the dead body as mentioned in column No.9 of the post mortem examination report and post mortem lividity was present at the back and rigor mortis was present all through the body. She has further stated that she collected anal swabs for semenal analysis and the FSL issued its report dated 18.10.2019 (Ex.P8) opining that semen and spermatozoa were not detected on cotton swabs ( markd as item No.10 in the report) and based on the said report, she issued her final opinion (Ex.P9) on 14.11.2019. She has also stated that she issued post mortem examination report (Ex.P7) to the effect that the cause of death to the
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best of her knowledge and belief was head injury and blunt injury on the chest and abdomen and approximate time of death was 12-18 hours prior to autopsy.
20.As mentioned in column No.7 of Ex.P4/inquest panchanama, there were injuries on the right side of the chest measuring 4x1 cm, on the left side of the chest below the breast measuring 2x1 cm, on the right hip measuring 8x3 cm and on the right thigh measuring 4x6 cm, there was swelling below the right eye and beside right ear and injury below the right knee and blood was oozing from nose and ears and anus was wide open. As found in column No.9 of Ex.P4/inquest panchanama, the panchas opined that on 08.05.2019 at about 09:15 PM, when the deceased boy went to buy a Frooti cool drink by taking Rs.50/-, on the way, unknown persons took him to the open place of one Khaja Moinuddin surrounded by a compound wall and caused injuries on the chest and head, due to which he died.
21.In column No.7 of Ex.P7/post mortem report, the doctor/PW9 has noted as “external anal orifice shows gaping of 2x1.5 cms with margins showing old healed mucosal tags in the lower ½ of the anal canal and fissures present at 3, 4, 8 and 9 ‘O’ clock positions. Funneling is present”. The doctor/PW9 has noted 11 ante mortem injuries in column No.9 of Ex.P7/post mortem report and the details of said injuries are as under:
“1.A scalp contusion of 2x1 cms on the left parietal region and left temporalis muscle is contused with underlying fissured fracture of 6 cms extending into the left middle cranial fossa at the base of the skull for 8 cms. Diffuse subdural and subarachnoid haemorrhage present all over the brain.
2. An abrasion of 1x0.75 cms below lateral canthus of left eye with surrounding contusion of 2x2 cms. A contused abrasion of 4x2 cms below the lateral canthus of right eye and cheek. An abrasion of 1x1 cms on the right temple and another of 2x1 cms on the front of right tragus. An abrasion of 5x1 cms present obliquely behind the right ear on the mastoid.
3. A contused abrasion of 3x2 cms on left ear and behind it. An abrasion of 1x1 cm present 3 cms in front of left ear.
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4. An abrasion of 0.5x0.5 cms on the right ala of the nose and 0.2x0.1 cms on the left ala of the nose.
5. An abrasion of 1x0.5 cms on the left side of lower lip. A contused abrasion of 1x1 cms on the right cheek. An abrasion of 1x1 cms on the right side of neck 2 cms below right angle of mandible.
6. An abrasion of 3x1 cms on the right side of chest inner to the nipple.
7. Multiple contused abrasions present in an area 15x7 cms on the right side of lower part of chest. An abrasion of 3x2 cms present inner and below the left nipple on the left side of chest and 1x1 cms present 4cms inner to left side of chest. An abrasion of 0.5x0.5 cms on the upper back of right side of chest. A contusion of 6x3 cms present on the back of middle lobe of right lung and 7x4 cm on the back of apical lobe of left lung.
8. A contusion of 15x8 cms on the front of right side of abdomen. Multiple contused abrasions present in an area of 20x18 cms on the front of abdomen.
9. Multiple contused abrasions present in an area of 10x9 cms on the left side of mid back of trunk. A scratch abrasion of 6 cms on the left flank present obliquely. Multiple scratch abrasions present in an area 6x5 cms on the left buttock and another scratch abrasion of 5cms on the lateral aspect of right buttock and 3 abrasions of 1x0.2cms, 2x1cms and 3x1cms present above right buttock at the back. Internally right lobe of liver is ruptured. About 1.5lts of blood present in the peritoneal and pleural cavities.
10. Multiple abrasions of 3x2 cms on the dorsum of the base of left thumb and 1x1 cms of the base of dorsum of right index finger.
11. An abrasion of 10x5 cms on the lateral aspect and upper part of right thigh and another 9x8cms on the middle 1/3rd of right thigh.
Note: All the external injuries are fresh and red in colour.”
22.From the evidence of PW1, who is the father of the deceased boy, it is evident that on 08.05.2019, at about 08:00 PM, the deceased boy went out of the house to buy a cool drink, but, he did not turn up and then he went in search of him and during the said search, at about 09:00 or 09:30 PM, he found the deceased boy lying dead in a compound situated nearby his house and the pant of the deceased boy was found removed and there was blood on the face of the deceased boy. From the evidence of PWs 2 and 3, whose house is nearby the scene of offence, it is evident that on hearing the noise “bachao, bachao” (save, save) from the open place surrounded by a wall situated towards North of their house, they went there and
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found a boy lying dead under a tree and his pant was found open and there was blood on his face. As stated by PW4, who is one of the panchas for scene of offence panchanama, also, the dead body of the boy was lying in the compound wall.
According to PW5, who is one of the panchas for inquest panchanama, there were injuries on forehead and chest of the deceased boy. As mentioned in column No.7 of inquest panchanama/Ex.P4, there were several injuries on the dead body of the deceased boy and his anus was found wide open. The doctor i.e., PW9, who conducted post mortem examination, has found 11 ante mortem injuries, the details of which are noticed above, on the dead body of the deceased boy. It is also evident from column No.7 of Ex.P7/post mortem examination report that external anal orifice showed gaping of 2x1.5 cm with margins showing old healed mucosal tags in the lower half of the anal canal and that fissures, (small tears in the lining of the anus) were present and funneling was also present, and as mentioned in column
No.9 of Ex.P7/post mortem examination report, there were injuries on the buttocks of the deceased boy also. Ex.P14/photographs show the lying of the dead body of the deceased boy on the ground with blood on the face and removal of the pant partially from the waist. Ex.P15/photographs show the injuries on the right thigh, left knee, stomach, face and the buttocks of the deceased boy. From a conjoint reading of these things, it is obvious that someone had carnal intercourse with the deceased boy through anus by force and killed him by causing several injuries noted above.
23.One of the charges framed against the accused is for the offence under
Section 5 (m) read with Section 6 of the POCSO Act. Section 5 (m) of the POCSO
Act says that whoever commits penetrative sexual assault on a child below twelve years is an offence of aggravated penetrative sexual assault and the same is punishable under Section 6 of the said Act. As noted above, someone had sexual intercourse with the deceased boy through his anus and the same amounts to
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penetrative sexual assault as defined in Section 3 of the POCSO Act. So, now the question to be considered is whether the deceased boy was below the age of twelve years at the time of the said incident. PW1, father of the deceased boy, has stated that the deceased boy was aged six years and five months at the time of the incident.
PW3 has stated that the age of the boy lying there was 6-7 years. In column No.2 of
Ex.P4/inquest panchanama, the age of the deceased boy is mentioned as seven years. So also, in Ex.P7/post mortem examination report, the age of the deceased is mentioned as seven years. It is, thus, obvious that the deceased boy was below the age of twelve years as on the date of the incident, which the accused is not disputing.
24.From the suggestions put to the prosecution witnesses, it appears that the accused is not disputing the fact that the deceased boy was killed. But, his case is that he did not commit the alleged offence and he is not responsible for the death of the deceased boy. So, it is for the prosecution to prove its case that the accused has committed penetrative sexual assault upon the deceased boy and when the deceased boy raised hue and cries, he killed him by lifting up and hitting him to the ground.
25.One of the evidences on which the prosecution is relying on to connect the accused with the offence alleged is the CC TV footage stated to have been collected from the house of PW14, which is stated to be situated nearby the scene of offence.
26.PW14 has stated that he is a resident of H.No.13-175/1, New HUDA
Colony, Wadi-e-Mustafa colony, Jalpally Village, Balapur Mandal, Ranga Reddy
District; that on 08.05.2019 at about 10:00 PM, the public gathered at the backside of their house and he went there and the public present there told him that a person ran away through the lane situated behind their house. He has further stated that they have arranged CC cameras to their house and he checked the said CCTV
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footage and on such checking, he found a person with thin personality running. He has also stated that on 09.05.2019, the C.I. of Police along with a police constable came to their house and they checked the CCTV footages at their house and on the request of the C.I. of Police, he copied the CCTV footages into a CD and handed over the same to him and that Ex.P12 is the said CD along with certificate under
Section 65-B of the Indian Evidence Act. It is also stated by him that the person who ran away may be Omer of their colony. He denied the suggestion that Ex.P12/
CD was not given by him to the police and that the police have fabricated Ex.P12 on 12.04.2021 at 15:00:09 hours and that the person seen in Ex.P12 is not Omer and that he is giving evidence as directed by the police only. PW15/Investigating Officer has stated that he collected CCTV footages from the house of PW14. He, in his cross-examination, has stated that he has collected Ex.P12 on 09.05.2019.
27.It is a well settled law that whenever any electronic evidence is used as an evidence, it is mandatory to prove the content of electronic record in accordance with Section 65-B of the Indian Evidence At. Digital Video Recorder (DVR) is an electronic record, as, it stores the data in electronic form captured by
CCTV Cameras. If the DVR itself is brought to the Court, it will be deemed as a primary evidence under Section 62 of the Indian Evidence Act. However, if there are large number of cameras installed and the information is digitally stored in huge servers, it is not possible to bring the entire setup before the Court. In such case, the only available option is to copy the data from the huge server to CD or USB and then produce it before the Court. Such USB or CD are not primary evidence and thus compliance of Section 65-B (4) of the Indian Evidence Act is mandatory. But, in the instant case, the prosecution did not choose to produce the DVR where the original content of electronic record contained in Ex.P12/CD was stored. It is not the case of the prosecution that the original electronic record was stored in huge servers and, therefore, it could not produce the same before the Court. Now the
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question arises whether the content of electronic record contained in Ex.P12/CD is a true and genuine one or not.
28.As stated by PW14, on 09.05.2019, he has copied the CCTV footage into a CD (Ex.P12) and handed over the same to the Inspector of Police. The
Inspector of Police (PW15) also in his cross-examination has stated that he collected CD (Ex.P12) on 09.05.2019. As seen from Ex.P12/CD, there are two photo images and two videos in it. At the top of one photo image, it is appearing as “WhatsApp image 2021-04-12 at 15:00:07.jpeg” and at the top of another photo image, it is appearing as “WhatsApp image 2021-04-12 at 15:00:08.jpeg”. At the top of two videos, it is seen as “WhatsApp video 2021-04-12 at 15:00:09.mp4” and the duration of this video is 0.27 seconds. It is, thus, obvious that the said photo images and videos were copied on 12.04.2012 at around 15.00 hours from
WhatsApp, but, not from CCTV. PW15/Investigating Officer, who collected
Ex.P12/CD, also, in his cross-examination, on confrontation of the content in
Ex.P12/CD by playing the same on the computer system in open Court, has admitted that it was copied from WhatsApp video on 12.04.2021 at 15:00:09 hours.
If really, PW15 has got copied CCTV footages directly from the DVR into the
CD/Ex.P12 on 09.05.2019, it is not known as to how it could appear as “WhatsApp video” and “WhatsApp image” with date 2021-04-12 in Ex.P12/CD. Another thing to be noted is that PW15 did not produce Ex.P12/CD into the Court along with charge sheet, which was filed on 08.11.2019. The learned Special Public Prosecutor filed a petition being Crl.M.P.No.140 of 2021 on 15.04.2021 to receive the said CD into evidence and the said petition was allowed on the same day, on which date
PWs 14 and 15 were examined before the Court. From this, it is obvious that
Ex.P12/CD was prepared and filed into the Court just three days before PWs 14 and 15 giving evidence. Further, since the CCTV footage (electronic record) contained in Ex.P12/CD is not a primary evidence under Section 62 of the Indian Evidence
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Act, the prosecution ought to have taken steps to get examined the electronic record (CCTV footage) copied into Ex.P12/CD by the Forensic Science Department concerned to rule out the possibility of tampering or editing of the CCTV footage.
But, it did not choose to do so. All these circumstances put together create any amount of doubt about the creditworthiness of the electronic record contained in
Ex.P12/CD.
29.As held by the Hon’ble Supreme Court in Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal1, it is mandatory to file a certificate as per Section 65-B (4) of the Indian Evidence Act in all cases where a person cannot bring the computer device upon which “original information” is stored to the Court and the person giving a certificate need only be able to attest to the requirements of Section 65-B of the Indian Evidence Act to the best of his knowledge and belief. In view of this legal position, since the DVR where the original information is stored is not produced before the Court, a certificate as required under Section 65-B (4) of the
Indian Evidence Act is necessarily to be filed. Section 65-B (4) of the Indian
Evidence Act reads as under:
“In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say:
(a)identifying the electronic record containing the statement and describing the manner in which it was produced;
(b)giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c)dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it”.
30.Now it is to be seen whether the certificate produced along with 1(2020) 7 SCC 1
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Ex.P12/CD satisfies the above requirements. The said certificate is stated to have been issued by PW14. In the body of the certificate, the above language is reproduced. But, admittedly, it does not bear the date on which it was issued. At the foot of the certificate, it is written in ink as “received copy”. Below the said writing, some signature is appearing. It is not known as to whom the said signature belongs to. It appears that the said certificate was prepared by someone and a copy of the same was handed over to the person whose signature is appearing therein. This does not satisfy the attestation as required under Section 65-B of the Indian Evidence
Act. For this reason also, the content of electronic record contained in Ex.P12/CD cannot be found to be creditworthy and so the same cannot be accepted.
31.The content of two videos contained in Ex.P12/CD is same. A person with thin personality wearing white colour shirt and black colour pant is seen running and the duration of said video is 0.27 seconds. In the photo images also, a person with thin personality wearing white colour shirt and black colour pant is seen in running motion. But, either in the video or in photo images, the face of the said person is not visible and his back is only being seen. So, even if it is taken for a moment that the video and photo images contained in Ex.P12/CD are true and correct and they reflect the true riplica of CCTV footage, it is not possible to hold that the person seen in the said video and photo images is the accused person.
32.The other evidence on which the prosecution is relying on to connect the accused with the offence alleged is the confession stated to have been made by him. PW15/Investigating Officer has stated that on 13.05.2019, the deputed staff apprehended the accused at his house and produced him before him and he interrogated him in the presence of PW7 and another and during the said interrogation, he confessed the offence and in pursuance of the said confession, he seized MOs 6 to 9 under Ex.P6. PW7 has stated that on 13.05.2019, himself and
Manne Prabhu (LW15) enquired with the accused at the police station and during
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the said enquiry, the accused confessed to have committed the offence. He has further stated that the accused took him and the police to his house and showed his clothes and footwear (MOs 6 to 8) and also cell phone (MO9) used by him and the police seized those articles. From this evidence of PW15 and PW7, it is obvious that the accused confessed to have committed the offence when he was in the custody of police. But, Sections 25 and 26 of the Indian Evidence Act say that no confession made by any person to a police officer or whilst he is in the custody of a police officer shall be proved as against such person. So, the confession stated to have been made by the accused, when he was in the custody of police, cannot be used against him. It is true that in pursuance of the confession made by the accused, the clothes and chappal stated to have been worn by him and cell phone stated to have been used by him i.e., MOs 6 to 9, were seized from him. But, the same does not amount to discovery of any fact relating to the offence alleged so as to make the said confession admissible under Section 27 of the Indian Evidence Act. So, the confession stated to have been made by the accused will not in any way connect him with the offence alleged.
33.PW6, Assistant Sub-Inspector of Police in Rachakonda
Commissionerate, at the relevant time, has stated that he was in-charge of clues team and on 09.05.2019 at about 03:00 AM, the C.I. of Police, Balapur Police
Station, called him on phone and informed him that a boy was killed in an open place in the limits of Balapur Police Station and he went to the scene at 04:30 AM, and the dead body of a boy was lying there and he searched for the clues at the scene, but, he did not find any clues. PW8, Police Constable in CID, Amberpet, has stated that he is the in-charge of Dog squad and on 09.05.2019, the C.I. of Police,
Balapur called their office and requested to send a Dog squad stating that a murder has taken place in the limits of Balapur Police Station and he took the dog at about 05:00 AM to Balapur Police Station and the police took him to the scene of offence
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at Wadi-e-Mustafa Colony and it was an open place surrounded by compound wall and there were bushes in the said open place and a dead body of a boy was lying in the said bushes and the dog scented the place and went to a distance of about 150 meters and stopped. PW10, Police Constable in Balapur Police Station, has stated that on 13.05.2019, himself, Naveen (LW19) and Jagadish (LW21) were on beat duty at Shaheen Nagar, Balapur, and at about 09:30 AM, the C.I. of Police told him that the accused is available at his house and asked him to go and bring him and then himself, Naveen (LW19) and Jagadish (LW21) went to the accused and brought him to the Police Station at about 10:30 AM and handed over him to the
C.I. of Police. PW11, Sub-Inspector of Police, Balapur Police Station, has stated that on 08.05.2019 at about 10:00 PM, the local people gave information that a boy was killed in a compound wall at Wadi-e-Mustafa colony, Jalpally Village and then himself and his staff rushed to the spot and preserved the scene and informed the
Inspector of Police (PW15) about the incident. This evidence of PW6, 8, 10 and 11 will not in any way connect the accused with the offence alleged.
34.PW13, Assistant Director, TS FSL, has stated that on 17.05.2019, she received five sealed cloth line covers, four sealed covers and one sealed plastic jar through G.Prabhakar, PC 3678 of Balapur Police Station and she was asked to examine the samples contained in the said covers and jar. She has further stated that she opened the covers and jar and one cover was containing soil, etc., with piece gauze cloth having dust stains (item No.1); that another cover was containing soil, etc., (control) (item No.2); that a paper parcel was containing a piece gauze cloth with dark brown stains (item No.3); that another paper parcel was containing a piece of gauze cloth (control) (item No.4); that another paper parcel was containing a medium size granite stone with dark brown stains (item No.5 – marked as MO5
before the Court); that a cloth line cover was containing a black colour mill made
track pant with white colour border (item No.6 – marked as MO10 before the
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Court); that another cloth lined cover was containing a brown colour terry cotton full sleeved shirt with dark brown stains (item No.7 – marked as MO11 before the
Court); that another cloth lined cover was containing a white, meroon, and blue colour stripes design terry cotton full sleeved shirt with dark brown stains (item
No.8 – marked as MO6 before the Court); that another cloth lined cover was containing a blue colour mill made track pant (item No.9 – marked as MO7 before the Court) and the plastic Jar was containing three cotton swabs (item No.10). She has also stated that she examined item Nos. 1 to 10 and human blood was detected on item Nos.1, 3 and 5 to 9; that the blood group of blood on item Nos. 3, 5, 6 and 7 is of ‘B’ Blood group; that blood group of blood on item Nos. 1, 8 and 9 could not be determined; that blood was not detected on item Nos. 2 and 4 and semen and spermatozoa were not detected on item Nos. 6 to 10 and she issued a report in file
No.SER/722/2019 dated 18.10.2019 (Ex.P8) to the said effect. From this evidence of PW13, it is obvious that human blood was found on some items sent to her for examination and the blood group of the blood found on some items was of ‘B’ blood group. But, it is not known as to whom the said blood belongs to. The
Investigating Officer ought to have get determined the blood group of the deceased boy and the accused, so as to find whether the blood found on item Nos.1, 3 and 5 to 9 examined by PW13 belongs to the deceased boy and/or the accused. But, he did not choose to do so. So, the evidence of PW13 and the report given by her i.e.,
Ex.P8, also is of no help to the case of the prosecution.
35.The other evidence remained is that of PWs 2 and 3 and the evidence relating to the test identification parade. PWs 2 and 3 are mother-in-law and son-in- law respectively and their house is at Wadi-e-Mustafa, Jalpally Village. PW2 has stated that on 08.05.2019 at 09:00 PM, she went to the terrace of their house for prayer (namaz) as it was Ramzan month and when she was doing namaz, she heard the noise “bachao, bachao” (save, save) from the open place surrounded by the
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compound wall situated towards the North of their house and then she called PW3 and herself and PW3 went towards the place from where she heard the noise and since it was dark at that time, PW3 switched on the flash light of his cell phone and in the said light, they saw a boy lying under a tree and his pant was found open and there was blood on his face and on seeing them a person started running away from the said compound wall and she asked PW3 to chase and catch him, but, the said person managed to escape. She has further stated that the person who ran away was with thin personality and wearing a white colour shirt with stripes and blue colour pant. She has also stated that she was taken to Cherlapally Jail and some persons were standing in a row and she was asked to identify the person who ran away on that day and she identified the person who ran away on that day and that she can identify the said person now also if she sees him again. By seeing the accused present in the Court, she has stated that he is the person who ran away on that day and whom she identified in the jail. She denied the suggestion that on 08.05.2019 at about 09:00 PM, she did not go to the terrace for namaz and she did not hear any noise of any boy and that she did not see any person on that night in the compound and she never saw the accused also and that she is identifying the accused at the instance of the police only. PW3 has stated that on 08.05.2019, after 09:00 PM, when he was in the house, PW2 was doing namaz on the terrace, as, it was Ramzan month and she told him that some noise is coming from the compound situated beside their house and then himself and PW2 went towards the said place and found a boy lying in the said compound and there was blood on his face and his pant was found removed from waist. He has further stated that they found a person in compound wall and on seeing them he started running and he tried to catch him, but, he escaped and the said person was with thin personality and wearing white shirt and blue pant. He has also stated that he was taken to Cherlapally Jail and there he was asked to identify the person who ran away on that day among the
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persons present and he identified the person who ran away on that day and he can identify him now also if he sees him again. By seeing the accused present in the
Court, he has stated that he is the person who ran way on that day and whom he identified in the jail and the name of the said person is Omer. He denied the suggestion that on 08.05.2019, at about 09:00 PM, PW2 did not go to terrace for namaz and she did not hear any noise from the compound wall and she did not tell anything to him and that himself and PW2 did not go to the compound wall and find any boy lying there and that himself and PW2 did not did not find any person in the compound and he did not try to catch any such person there and that he never saw the accused and he identified him in the jail at the instance of the police only.
36.PW12, VI Additional Metropolitan Magistrate, Cyberabad at
L.B.Nagar, has stated that on 05.08.2019, she received a requisition from the
Inspector of Police, Balapur Police Station, to conduct test identification parade of the accused in Crime No.171 of 2019 of Balapur Police Station and she fixed the date as 05.10.2019 for holding test identification parade and after obtaining the necessary permission from the Metropolitan Sessions Judge, on 05.10.2019, at about 03:20 PM, she visited the Central Prison, Cherlapally, and there the police filed a report serving summonses on two witnesses, namely, Rehana Begum (PW2) and Mohd. Munawar (PW3) and she selected video conference room in Manasa
Sarovar Block to examine the witnesses and she got summoned the said witnesses one after another and examined them separately. She has further stated that on her instructions, the Jailor produced the suspect by name Omer Bin Hassan and also five non-suspects viz., Badraiah, Sreenu, Mohd. Khaja Basha, Mahesh and Abdul
Rahman and they were wearing shirts and pants and the suspect was not wearing any conspicuous dress; that the suspect and non-suspects satisfied about the arrangements made for test identification parade and she asked the suspect and non- suspects to stand in a row and suspect stood after non-suspect No.2 from west to
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east and on her instructions, her Attender brought Rehana Begum (PW2) and she asked her to identify the suspect and she (PW2) after looking at the row for about a minute, identified the suspect who stood between suspect No.2 and suspect No.3 and after obtaining her signature she sent her away. It is also stated by her that she got summoned Mohd. Munawar (PW3) through her Attender and asked him to identify the suspect and he after looking at the row for about two minutes identified the suspect who stood between suspect No.2 and suspect No.3 and after obtaining his signatures, she sent him away. It is also stated by her that she examined and recorded the statement of the suspect and prepared a detailed report under Ex.P11.
37.From the above evidence of PWs 2 and 3, it is obvious that on hearing the noise as ‘bachao, bachao’ from the open place surrounded by a wall situated towards the North of their house, they went there and saw a boy (deceased) lying dead near a tree and his pant was found open and they also saw a person in the flash light of cell phone of PW3 running away from the said compound and PW3 tried to catch him, but, he escaped. It is also evident from their evidence that during test identification parade conducted by PW12/Magistrarte, they identified the suspect/accused as the person who ran way on that day. During their evidence
before the Court also, they identified the accused as the person who ran away on
that day. As stated by PWs 2 and 3, the person who ran away on that day was with thin personality and wearing white colour shirt with stripes and blue colour pant.
The thin personality spoken by Pws 2 and 3 correlates to the personality of the accused as he is thin. So also, the colour of the shirt and pant spoken by Pws 2 and 3 correlates to MOs 6 and 7 (clothes) seized from the accused. Except putting some formal suggestions, which are noticed above, nothing contra was elicited from PWs 2 and 3 to dislodge their evidence relating to their seeing the accused at the scene of offence and identifying him in the test identification parade. PW12/Magistrate also has categorically stated that PWs 2 and 3 have identified the suspect/accused,
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during the test identification parade, as the person whom they have seen at the place of offence.
38.It is contended by the learned counsel for the accused that the alleged offence occurred on 08.05.2019 and the accused was arrested on 13.05.2019, but, the Investigating Officer filed requisition before the Magistrate for conducting test identification parade on 05.08.2019 i.e., 89 days after the occurrence of the incident and 84 days after the arrest of the accused, and the Magistrate (PW12) conducted test identification parade on 05.10.2019 i.e., 150 days after the occurrence of the incident and 145 days after the arrest of the accused, and the Investigating Officer (PW15) did not offer any explanation for the said delay caused in getting conducted the test identification parade and this unexplained delay throws a doubt on the genuineness of identification. He, in support of this contention, cited the following decisions:
(a) Anil Sharma v. State of Uttaranchal2.
(b) Atar Singh v. State of U.P 3 .
39.In Anil Sharma’s case (2 supra), the Hon’ble Uttaranchal High Court, at para No.9, held as under:
“It is of also significance that no identification marks or features were disclosed in the written FIR (Ext.Ka-1). The arrest of the appellants was made on 01.02.1998 and as mentioned above the test identification parade came to be held after 51 days on 24-3-1998. No explanation of the delay has been put forth by the prosecution and such a long delay throws doubt on the genuineness of identification.”
40.In Atar Singh’s case (3 supra), the Hon’ble Allahabad High Court, at
Para No.12, held as under:
“It is note-worthy that the appellants were arrested on October 25, 1997 and put up for test identification on January 24, 1978 i.e., 91 days after their arrest. The appellant Amit Ali hails from village Bhatoli while Atar Singh is 22003 Cri.LJ 3497 32003 Cri.LJ 676
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resident of another village Kishanpur. Both these villages are located at a distance of one or two miles respectively from the village of the informant.
Both the appellants have pleaded that they were known to the witnesses
Pattoo and Raghunath Prasad as their agricultural lands are adjacent to each other’s. In this background, the evidence of two witnesses, namely Pattoo
PW2 and Raghunath prasad PW3 who allegedly identified the two appellants cannot be accepted to be as trustworthy. The prosecution has not come forward with a plausible explanation as to why there was a delay of more than three months in putting the appellants to test identification. It has been held by the Hon’ble Supreme Court in ‘Soni vs. State of U.P. reported in (1982) 3 SCC 368’ that identification parade held 40 days after the arrest of an accused throws a grave doubt on the genuineness of such identification. Similarly in ‘Jairam v. State of U.P., (1965) 33 All Cri C 155’ this Court held that a test identification held more than two months after arrest creates a long shadow of doubt upon the veracity of the identification.
Yet in another decision in ‘Mithoo Singh v. State of U.P., 1996 All Cri C 417 : (1996 All LJ 612)’ this Court held that the memory of human being is bound to fail after more than fifty four days after the occurrence and if the identification takes place after that duration, the result would be a bad peformance. In other words, the value of such a test identification is totally diminished. The Apex Court also followed the same principle of law and held in ‘Shabad Pulla Reddy v. State of Andhra Pradesh, (1997) 35 All Cri C 464: (AIR 1997 SC 3087) that the test identification parade held three months after the arrest of the accused would lead to a difficult situation to infer that witnesses have correctly identified the appellants. The Supreme
Court held that unusual and unexplained delay in holding the test identification parades makes it difficult to conclusively hold that after a long lapse of time, the witnesses were still able to have a clear image of the accused in their minds and identify them correctly at the identification parades. In ‘Bundu v. State of U.P., (1992) 29 All Cri C 663’ this Court ruled that if no description of physical feature is given in First Information
Report, possibility of showing the accused to the witnesses after arrest cannot be ruled out. It was also held further that the test identification after 40 days of the arrest with no explanation for delay in holding the identification parade, possibility of the accused having been shown to the witnesses cannot be discarded”.
41.In reply, the learned Special Public Prosecutor, while contending that
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the delay in holding the test identification parade may not be held to be fatal, relied on a Judgment of the Hon’ble Supreme Court in Lal Singh v. State of U.P. 4 The
Hon’ble Supreme Court in the said judgment, at para Nos.28 and 43, held as under:
“………..The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard and fast rule can be laid down. The Court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The Court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade.
Where there is an inordinate delay in holding a test identification parade, the Court must adopt a cautious approach so as to prevent mis-carriage of justice. In cases of inordinate delay it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting \glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the Court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case.
It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probablising the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence”.
42.As held by the Hon’ble Supreme Court in the above decision, the evidence of identification has to be considered in the peculiar facts and circumstances of each case and no hard and fast rule can be laid down regarding 4AIR 2004 SC 299 = (2003) 12 SCC 554
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the holding of the test identification parade at the earliest possible opportunity and the Court has to rule out the possibility of the accused having been shown to the witnesses before holding a test identification parade. The Hon’ble Supreme Court in another decision in Munna Kumar Upadhyaya @ Munna Upadhyaya v. State of
A.P.5 held that the delay per se cannot be fatal to validity of holding an identification parade, in all cases, without exception, more so, when accused persons were duly identified by the very same identification witnesses in the open
Court, while they were deposing.
43.In the instant case, PWs 2 and 3, as noticed above, had sufficient opportunity to see the accused in the flash light of cell phone switched on by PW3 and further the colour of shirt and pant wore by the accused spoken by PWs 2 and 3 matches with the colour of MOs 6 and 7 (clothes) seized from the accused. Further,
PWs 2 and 3 identified the accused during the test identification parade and also
before the Court as the person whom they have seen at the scene of offence on the
date of incident. No suggestion as such was put to PWs 2 and 3 that the accused was shown to them before holding test identification parade and, therefore, they have identified him during the test identification parade. No motive or grudge is also attributed against PWs 2 and 3 for their identifying the accused in test identification parade as well as in the Court and for speaking against him. The accused also did not state before PW12/Magistrate, when he was examined after test identification parade, that he was shown to PWs 2 and 3 by the police and, therefore, they have identified him in the test identification parade. On the other hand, he has stated that “I have no objection with regard to the selection of non-suspects and the manner of conducting test identification parade, but I have committed this offence unknowingly”. No suggestion as such was given to PW12/Magistrate denying that the accused has stated so before her. In the circumstances, in view of the law laid 52012 (2) ALD (Crl.) 838 (SC)
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down by the Hon’ble Supreme Court in the above decisions, the delay caused in conducting the test identification parade of the accused cannot be held to be fatal.
44.One of the charges framed against the accused is for the offence under
Section 5 (m) read with Section 6 of the POCSO Act. As per Section 29 of the
POCSO Act, if a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. As per Section 30 of the POCSO
Act, in a prosecution for any offence under the Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state and it shall be for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence beyond reasonable doubt and not by mere preponderance of probability.
45. In the instant case, as noticed above, the prosecution is able to prove that the accused has committed the offence of penetrative sexual assault as defined in Section 3 of the POCSO Act and since the deceased/victim boy was a child below the age of twelve years, it attracts the offence of aggravated penetrative sexual assault under Section 5 (m) of the POCSO Act, which is punishable under
Section 6 of the said Act. This apart, in view of the presumption contained in
Section 29 of the POCSO Act, it is to be presumed that the accused has committed the said offence, unless the contrary is proved. The Court shall also presume that the accused had culpable mental state on his part, which he shall disprove beyond reasonable doubt. But, the accused, excepting putting some formal suggestions to the prosecution witnesses, more particularly to PWs 2 and 3, that he did not commit the offence alleged, did not attribute any mala fides or grudge against the prosecution witnesses for speaking against him. He did not even take any specific defence for his alleged implication in this case. Thus, the presumptions contained in
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Sections 29 and 30 of the POCSO Act remained unrebutted and consequently, it can be presumed that the accused has committed the offence under Section 5 (m) of the
POCSO Act.
46.PW5/panch for inquest panchanama, in his cross-examination, has admitted that in column No.4 of Ex.P4/inquest panchanama it is mentioned that
PW1 has seen the victim lastly on 08.05.2019 at 09:42 PM and that in column No.9, it is mentioned that unknown persons took away the deceased and that the witnesses shown in column No.1(b) of Ex.P4/inquest panchanama did not opine that the deceased was assaulted sexually and killed. Referring to these admissions, it is contended by the learned counsel for the acused that when till the time of conducting Ex.P4/inquest panchanama on 09.05.2019 at 09:30 AM it was not known as to who assaulted sexually and killed the deceased boy, how the prosecution could connect the accused with the alleged offence and this circumstance suggests that the accused was implicated in this case after due deliberations. But, from the evidence of PWs 14 and 15, it is evident that on 09.05.2019 the CCTV footages from the CCTV cameras arranged at the house of
PW14, which is nearby the scene of offence, were checked and during the said checking the accused was found to be running in suspicious circumstances. It appears that, initially, the accused was connected with the offence alleged based on the said CCTV footage and subsequently, the same was substantiated by the identification made by PWs 2 and 3 during the test identification parade. Of course, the said CCTV footage copied into Ex.P12/CD is being kept out of consideration.
But, it is only due to technical reasons noticed above. However, the Investigating
Agency may use the same for connecting the accused, prima facie, with the crime alleged. Further, the object of inquest is only to ascertain whether a person died under suspicious circumstances or unnaturally and if so what is apparent cause of death. It is a well settled law that inquest report is not a substantive evidence. As
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held by the Hon’ble Supreme Court in Madhu v. State of Karnataka 6, any discrepancy occurring in inquest report cannot be termed as fatal. So, the above admissions obtained from PW5 regarding the information mentioned in
Ex.P4/inquest report would not render the case of the prosecution, which is otherwise held proved, doubtful.
47.Another contention raised by the learned counsel for the accused is that as per PW13, who examined the material objects collected and sent for examination at Telangana State Forensic Science Laboratories, no semen and spermatozoa were not detected in black colour mill made track pant with white colour border (MO10 – marked as item No.6 in the FSL report) and brown colour terry cotton full sleeved shirt with dark brown stains (MO11 – marked as item No.7 in the FSL report) seized from the dead body of the deceased and in white, maroon and blue colour stripes design terry cotton full sleeved shirt with dark brown stains (MO6 – marked as item No.8 in the FSL report) and blue colour mill made track pant (MO7 – marked as item No.9 in the FSL report) recovered from the accused and in three cotton swabs (marked as item No.10 in FSL report) and, therefore, it cannot be held that the accused had any carnal intercourse with the deceased boy through his anus. It is true that no semen and spermatozoa were found by PW13 in the above material material objects sent to her for examination. But, it is to be noted that it is not the case of the prosecution that the accused has penetrated his penis into the anus of the deceased boy and emitted his semen. The only case of the prosecution is that he inserted his finger into the anus of the deceased boy. So, the question of finding any semen and spermatozoa in the material objects i.e., clothes of the deceased boy and the accused, that were sent for analysis does not arise.
48.PW1, in his cross-examination, has admitted that he did not state
before the police that by the time, he went to the spot, two police people were
6AIR 2014 SC 394 = 2014 (1) ALD (Crl.) 699 (SC)
32 of 35 S.C.No.1188 of 2019
present there and that the accused resides in their locality at Jalpally. PW2 denied to have not stated before the police that the pant of the boy was found open. But,
PW15/Investigating Officer has admitted that PW2 did not state so before him.
Referring to these omissions, it is contended by the learned counsel for the accused that since PWs 1 and 2 have improved their version before the Court, the entire case of the prosecution is to be viewed with suspicion. This Court is unable to accept this contention. The omissions that are pointed out in the evidence of PWs 1 and 2 are very trivial in nature and they do not, in any way, render the case of the prosecution doubtful.
49.For the reasons recorded supra, this Court is of the opinion that the prosecution is able to prove its case against the accused that he kidnapped the deceased boy, who was below the age of 12 years, had carnal intercourse with him through his anus and killed him and thereby he committed the offences punishable under Sections 363, 377 and 302 of the Indian Penal Code and Section 5 (m) read with Section 6 of the POCSO Act, with which he is charged. Hence, the accused is to be convicted for the said offences. He is, accordingly, convicted for the said offences, under Sections 235 (2) of the Code of Criminal Procedure.
Special Judge for Trial of cases under POCSO Act- cum-IX Addl. District
and Sessions Judge (FTC), Ranga Reddy District at L.B. Nagar. FAC. Fast Track Special Judge for Expeditious trial and disposal of Rape and POCSO Act Cases, Ranga Reddy District at L.B.Nagar.
50.Heard the accused on question of sentence. It is submitted by him that he did not commit the alleged offence and he is falsely implicated in this case; that he has oldaged mother and two unmarried sisters and except him, there are none to look after them and that he is in jail for the last more than two years and hence, he may be let off by adjusting the punishment to the period alreay undergone. The learned counsel for the accused also requested to show some leniency in imposing
33 of 35 S.C.No.1188 of 2019
the sentence against the accused by contending that the accused is in jail since 13.05.2019. But, the offences alleged and proved against the accused are henious offences and further minimum punishment of imprisonment is prescribed for the said offences. Hence, the accused cannot be let off by giving set off to the period already undergone by him. However, having regard to the above submissions made by the accused and his Advocate, some lenient view can be taken in imposing the sentence against the accused instead of imposing the maximum sentence prescribed for the offences proved.
51.In the result, the accused is convicted for the offences under Sections 363, 377 and 302 of the Indian Penal Code and Section 5 (m) read with Section 6 of the POCSO Act, under Section 235 (2) of the Code of Criminal Procedure, and sentenced to undergo;
(a) rigorous imprisonment for FIVE years and pay a fine of Rs.1,000/- (Rupees one thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 363 of the Indian Penal Code;
(b) rigorous imprisonment for TEN years and pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 377 of the Indian Penal Code;
(c) imprisonment for LIFE and pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 302 of the Indian Penal Code; and
(d) rigorous imprisonment for TEN years and pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to undergo simple imprisonment for SIX months for the offence under Section 5 (m) read with Section 6 of the POCSO Act.
MOs No.1 to 8 and 10 to 12 deposited into the Court vide CPR No.01of 2021 shall be destroyed and MO-9, Samsung cell phone, shall be confiscated to the
State after expiry of appeal time.
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The substantial sentences of imprisonment imposed against the accused shall run concurrently.
As seen from the record, the accused is in jail in this case since 13.05.2019.
Dictated to the Stenographer and after transcribed by him, corrected and
pronounced by me in the open Court, on this the 20th day of July, 2021.
Special Judge for Trial of cases under POCSO Act- cum-IX Addl. District
and Sessions Judge (FTC), Ranga Reddy District at L.B. Nagar. FAC. Fast Track Special Judge for Expeditious trial and disposal of Rape and POCSO Act Cases, Ranga Reddy District at L.B.Nagar.
APPENDIX OF EVIDENCE
(Witnesses examined)
For the prosecution: PW1: Father of the victim/deceased boy and de facto complainant PW2: Smt.Rehana Begum, eyewitness. PW3: Mohd.Munawar, eyewitness. PW4: Omer Baom, Panch for scene of offence panchanama. PW5: Mohd.Allahuddin Patel, Panch for inquest panchanama. PW6: K.Kishore, ASI of Police, Clues team in-charge. PW7: K.Shekar, Revenue Inspector, Panch for confession and recovery of MOs 6 to 9. PW8: R.Laxman, Police Constable, Dog squad in-charge. PW9: Dr.M.Sugatha, conducted PME and examined the accused about his potency. PW10: N.Mallesh, Police Constable, apprehended the accused. PW11: P.Nagaraju, S.I. of Police, preserved the scene. PW12: Smt.Kavitha Karnati, VI Addl.Metropolitan Magistrate, conducted TI parade. PW13: Dr.G.Swarna Rani, Asst.Director, TSFSL. PW14: Rayees Ahmed, circumstantial witness. PW15: V.Saidulu, Inspector of Police/Investigating Officer.
For the defence: -None-
EXHIBITS MARKED
For the prosecution:
Ex.P1: Complaint dated 09.05.2019 given by PW1 to the police. Ex.P2: Scene of offence panchanama. Ex.P3: Rough sketch of scene of offence.. Ex.P4: Inquest panchanama. Ex.P5: Relevant portion in confession and recovery panchanama. Ex.P6: Seizure panchanama of MOs 6 to 9. Ex.P7: Post mortem examination report. Ex.P8: FSL report. Ex.P9: Final opinion given by doctor/PW9. Ex.P10: Potency certificate of the accused given by doctor/PW9.
35 of 35 S.C.No.1188 of 2019
Ex.P11: Test identification parade proceedings. Ex.P12: CD with certificate under Section 65-B of Evidence Act. Ex.P13: FIR in Crime No.171 of 2019. Ex.P14. Two photographs of scene of offence without negatives or CD. Ex.P15. Two photographs of the dead body of the deceased boy without negatives or CD.
For the defence: -NIL-
MATERIAL OBJECTS MARKED
MO1: Bloodstained earth. MO2: Control earch. MO3: Collected swab. MO4: Control swab. MO5: Stone with bloodstains. MO6: White, meroon, blue lines full hands shirt. MO7: Blue colour night (track) pant. MO8: A pair of red colour chappal. MO9: Samsung Cell Phone. MO10: Black pant with white lines. MO11: Brown colour full sleeves shirt with yellow lines. MO12: Sandals (footwear)
Special Judge for Trial of cases under POCSO Act- cum-IX Addl. District
and Sessions Judge (FTC), Ranga Reddy District at L.B. Nagar. FAC. Fast Track Special Judge for Expeditious trial and disposal of Rape and POCSO Act Cases, Ranga Reddy District at L.B.Nagar..
Satish *