(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 1 of 34
IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE
OF FIRST CLASS: AT: RAMANNAPET
Tuesday, this the 18th day of September, 2024
Present:- Smt.Sampathi Rao Chandana, Addl. Judicial Magistrate of First Class, Ramannapet.
(New) Calendar Case No. 976 OF 2021
(Old) Calendar Case No. 717 OF 2018
Between:-
State through Sub-Inspector of Police, Addagudur P.S.,
... Complainant.
AND
Itikala Venkanna, S/o. Sathaiah, Age: 26 years, Occ: Coolie, R/o. Kondampeta Village of Addagudur Mandal, Yadadri Bhongir District.
...Accused
This case is coming up before me on 11-09-2024 for final hearing in the presence of learned Assistant Public Prosecutor Sri.P.Venkata Avinash, for the Complainant and Sri.N.Swamy, learned Counsel for the accused, and having stood over for consideration till this day this Court delivered the following:-
JUDGMENT
1.The Sub Inspector of Police, Addagudur Police Station has filed charge sheet against the accused in Cr.No.24/2018 for the offence under section 326 of Indian Penal Code – 1860 (herein after referred as IPC) and Sec. 75 of Juvenile Justice Care and Protection of Children – 2015 (herein after referred as J.J Act).
THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:
2.That on 31-03-2018 at 11.00 hours the complainant/Yerra
Lingaiah came to Addagudur Police Station and lodged a Telugu complaint stating that “about 10 days back the complainant’s aunt died and thereby the complainant along with his elder daughter
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 2 of 34 and his grandson went to Thirumalagiri Village of Suryapet Mandal to attend the obsequies of his aunt. After attending the obsequies they came to Kondampet village i.e., to the house of complainant’s younger daughter. As usual that on 30-03-2018 the complainant along with grandson slept on a cot. On the same night the complainant’s son-in-law/Itikala Venkanna who is husband of his younger daughter came to his grandson, while he was sleeping on a cot, woke him up and asked him to accompany him to attend the nature call. Thereupon his grandson accompanied his son-in-law and they both went to the outskirts of Kondampet Village, where his younger son-in-law picked up quarrel with his grandson under the influence of alcohol, bet him with a stick on his back, on face and caused swelling and also pulled his penis with his hand forcibly, due to which flesh of his penis was damaged and caused bleeding injury. On 31-3-2018 his grandson was shifted to the hospital in 108 ambulance for treatment”. The complainant requested to take legal action against the accused.
3.Basing on the complaint the LW10/P.Shiva Naga Prasad registered a case in Cr.No.24/2018 for the offence under section 326 of IPC and Sec. 75 of J.J.B Act – 2018. During the course of investigation the LW10 examined LW1 to LW6 and recorded their statements. Later LW10 visited the scene of offence and conducted
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 3 of 34 scene of offence panchanama and drew rough sketch and seized one stick which was used in the commission of the offence and affixed signed chits over the stick in the presence of LW7 and LW8.
Later LW10 collected medical certificate of injured from LW9. After completion of entire investigation the charge sheet has been filed against the accused.
4.This court has taken cognizance for the offences under Sec.
326 of IPC and Sec. 75 of J.J. Act – 2015 against the accused.
5.After receiving of the summons the accused was present
before this court and copies furnished as per sec. 207 of Criminal
Procedure Code (herein after referred as Cr.P.C).
6.Later the accused was examined under section 239 Cr.P.C., for the accusation of the offences under Sec. 326 of IPC and Sec. 75 of J.J. Act – 2015, denied the charge sheet allegations, pleaded not guilty and claimed to be tried. Therefore, the charges framed for the offences under sections 326 of IPC and Sec. 75 of J.J. Act – 2015 read over in the vernacular (Telugu) language of accused.
7.In the present case, the prosecution examinedPW1 to PW10 and marked exhibits Ex.P.1 to Ex.P.7 and M.O.1.
8.On conclusion of trial the accused examined under Sec. 313
Cr.P.C by putting incriminating material available against him in
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 4 of 34 the evidence of prosecution witnesses, the accused denied the same and reported no evidence in his behalf.
9.The learned APP argued that, in the present case the injured/ victim was aged 12 years on the date of incident. On one day in the year 2018 i.e., on 30-03-2018 the injured/P.Ganesh went to his aunt’s house at Thirumalagiri village to attend funeral, at the night hours of 30-03-2018 the injured and his grandfather slept on a cot.
The accused being the son-in-law of complainant and husband of complainant’s younger daughter/PW2 took the injured along with him on a pretext to attend the natural calls and he took him to faraway place and under the influence of high alcohol bet him with stick on his back, face and caused him swelling injuries and he was also attacked on private parts of the said P.Ganesh. These are the brief facts of the case.
10.In order to establish the offence under section 326 of IPC and
Sec. 75 of J.J Act, prosecution has examined all the material witnesses i.e., PW1 to PW10. All the material witnesses supported the case of prosecution on every aspect. The injured himself narrated the facts elaborately as how he was brutally attacked by the accused. The injured sustained degloving injury which can be considered within the first head of section 320 of IPC. The doctor who had examined the injured categorically deposed in his chief
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 5 of 34 examination that the injured lost his skin over his penis which is in existence there from the date of his birth and he had conducted plastic surgery over the penis by skin grafting. Therefore, the ingredients of section 326 of IPC and Sec. 75 of J.J Act. The accused shall be given stringent punishment for his inhuman acts towards 12 years child who is none other than his own relative.
Finally prayed to convict the accused in the interest of justice.
11.Disagreeing with the submission made by the learned APP, the learned defence counsel argued that, in the present case it is an admitted fact by all the prosecution witnesses that the accused was under the influence of high alcohol. The accused never took the injured to any place far away from their house, the accused fell somewhere in his village. Some third party might have caused the injuries to the PW4. There is no eye witness to the alleged incident and all the family members of the injured presumed the fact that the accused might have caused the injuries, but there is no direct evidence to that extent. The injured himself deposed evidence against the accused due to the animosity between the accused and his wife who is none other than the aunt of injured. In addition to that the material witnesses and the injured deposed that he sustained injuries on his back and face, but there is no medical examination report to that extent. The Ex.P.7 medical report of PW4
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 6 of 34 which is disclosing that the injured sustained an internal injury over his private part, which does not comes within the definition of section 320 of IPC i.e., grievous hurt. In addition to that the PW10 admitted in his cross examination that the injury sustained by PW4 even by falling in any other manner. The ingredients of section 75 of J.J. Act not attracted against the accused. The accused was in the high influence of alcohol, hence he was not entertained any guilty mind and the injured himself deposed that the accused was also fell asleep next to him after the incident. Therefore, there are several lacunas in the case of prosecution and the material facts were not categorically brought on record to found the accused guilty for the alleged offences. Thus, the accused shall be acquitted from the alleged offences in the interest of justice.
12.The brief findings given by the investigation officer as per the charge sheet is that, the complainant/LW1 is the father of LW2 and
LW5 and grandfather of the victim boy/LW6. The LW3 and LW4 are the neighbors of LW2. That about 10 days back the aunt of complainant was expired at Thirumalagiri Village of Suryapet
Mandal. As such the complainant, his elder daughter/LW5 and grandson/LW6 went to Thirumalagiri Village and after attending to the obsequies of his aunt, they all went to the house of LW2 who is the younger daughter of LW1 and stayed at the house of LW2. As
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 7 of 34 usual that on the night of 30-03-2018 the victim and the complainant have slept on a cot. At about 23.00 hours the accused who is the husband of LW2 went to the victim and asked him to follow him as he is going to attend natures call. The victim/LW6 followed the accused and they both went to the outskirts of
Kondampet Village, where the accused picked up quarrel with the victim under the influence of alcohol, picked a stick available at the scene and belaboured him with stick on his back and on his lips and caused swelling injuries and thereafter in a fit of rage the accused caught hold the penis of the victim and pulled forcibly, due to which the flesh of the penis was damaged and he was profusely bleeding. Later the victim rushed to the house and informed to his grandfather and others. The LW2 and other informed LW5 who was away from the village was rushed to Kondampet village and shifted her son to a hospital in 108 ambulance. Thereby the charge sheet has been filed against the accused and it isconstituted the offence under section 326 of IPC and sec. 75 of J.J Act against the accused. These are the brief findings of the investigation officer.
13.The admitted facts are that the accused/Itikala Venkanna is the son-in-law of complainant/Yerra Lingaiah and husband of
Itikala Radhika/PW2. The injured/P.Ganesh and his mother/
P.Renuka are also the relatives of accused. The PW3 is none other
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 8 of 34 than the daughter of PW1 and sister of PW2. Therefore, there is no dispute with regard to the identification of the accused by any of the material witnesses. Likewise the PW4/P.Ganesh was aged 12 years as on the date of incident. The material witnesses and injured himself as well as his photographs shows that the injured was aged 12 years as on the date of incident. The accused not disputed the fact that the injured/PW4 was not aged 12 years as on the date of incident.
14.In order to have a better understanding about the allegations against the accused, the alleged sections for which the cognizance has been taken against the accused is extracted below:-
Sec. 320 of IPC:- Grievous hurt. The following kinds of hurt only are designated as “grievous”:— (First)— Emasculation.
(Secondly)— Permanent privation of the sight of either eye.
(Thirdly)— Permanent privation of the hearing of either ear, (Fourthly)— Privation of any member or joint.
(Fifthly)— Destruction or permanent impairing of the powers of any member or joint.
(Sixthly)— Permanent disfiguration of the head or face.
(Seventhly)— Fracture or dislocation of a bone or tooth.
(Eighthly)— Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 9 of 34
Sec. 325 of IPC:- Punishment for voluntarily causing grievous hurt
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Sec. 326 of IPC:- Voluntarily causing grievous hurt by dangerous
weapons or means - Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 75 of JJ Act:- Punishment for cruelty to child —Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:
Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases: Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 10 of 34 rupees: Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees
15. Now the point for determination is:
i.Whether the injured/P.Ganesh and his grandfather/ Y.Lingaiah were present at the residence of PW2/Itikala Radhika as on 30-03-2018?
ii.Whether the PW4/P.Ganesh last seen along with the accused/Itikala Venkanna i.e., at about 10.30 p.m., as on 30-03-2018?
iii.Whether the PW4/P.Ganesh sustained injuries as mentioned in the complaint and as specified in Ex.P.7/Medical certificate?
iv.Whether the injury sustained by the PW4 comes within the definition of section 320 of IPC thereby attracts the offence punishable under section 326 of IPC or section 325 of IPC?
v.Whether the accused/Itikala Venkanna who is having control and custody of the PW4/P.Ganesh assaulted the PW4 and contravene the section 75 of J.J. Act?
vi.Whether the prosecution could able to prove the charges under sections 326 of IPC and Sec. 75 of J.J. Act – 2015 against the accused beyond all reasonable doubt?
vii.To what finding?
POINT:-[i] Whether the injured/P.Ganesh and his grandfather/
Y.Lingaiah were present at the residence of PW2/Itikala
Radhika as on 30-03-2018?
16.The complaint lodged by A.Lingaiah, dt.31-03-2018, wherein it was mentioned that “at about 10 days back prior to the date of incident the aunt of complainant was died. Hence, in order to
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 11 of 34 attend the 11th day ceremony of said person, the complainant, his elder daughter/Renuka and his grandson/Ganesh all of them came to Thirumalagiri. After attending the ceremony on the same day three of them went to his younger daughter/I.Radhika’s house at
Kondampet Village of Addagudur Mandal and stayed there”. The complainant examined himself as PW1 and the complaint marked as Ex.P.1.
17.On careful reading of the sec. 161 Cr.P.C as well as the chief examination of PW1, wherein he has consistently deposed that himself, his elder daughter and grandson came to house of his younger daughter. The PW2/I.Radhika younger daughter of PW1 and PW4/injured deposed the same content with regard to the arrival of PW1, PW3 and PW4 to the house of PW2 and their presence at the house of PW2 on 30-03-2018 has not been disputed by the counsel for accused. The PW3/P.Renuka deposed that she also came to Thirumalagiri and went to her sister’s/PW2 house and she came back to Kondampet by leaving her father and her son at the house of PW2. On the way she met the accused and gave
Rs.500/- to him and request him to take care of his son.
The consistent version of PW1 to PW4 with regard to their presence at complainant’s house shows that on the date of the incident the PW1 and PW4 were present at the house of PW2. In the
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 12 of 34 cross examination of all the material witnesses the defence counsel did not dispute the presence of PW1 and PW4 at the house of PW2.
Therefore, the prosecution established that as on the date of incident i.e., on 30-03-2018 the PW1 and PW4 were present at the house of PW2 and the accused being the husband of PW2 was also present. Thus, the point is answered in favour of the prosecution.
POINT:-[ii] Whether the PW4/P.Ganesh last seen along with the
accused/Itikala Venkanna i.e., at about 10.30 p.m., as on 30-
103-2018?
18.The complainant/PW1 deposed in his complaint/Ex.P.1 that “on 30-03-2018 at about 11.00 p.m., while the PW1 and his grandson Ganesh/PW4 and his daughter while sleeping on a cot at the house of PW2, then the complainant’s son-in-law i.e., Itikala
Venkanna came to the house by consuming alcohol and woke up my grandson and Itikala Venkanna took my grandson along with him”. The PW1 to PW4 deposed in their sec. 161 Cr.P.C statements that the accused came to the PW1 and took the P.Ganesh along with him.
19.The PW1 in his chief examination before the court stated that “while I was sleeping along with my grandson outside of the house, then the accused Itikual Venkanna came to the house in a drunken condition and taken away my grandson to accompanying him for
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 13 of 34 natural calls”. The PW2 the younger daughter of complainant deposed in her chief examination “on the same day during night hours my husband in the high influence of alcohol came to our house. At that time my father and LW6 were sleeping in front yard of our house. The accused forcibly took away my sister’s son”. The
PW4 the injured deposed in his chief examination “on the date of incident myself and my grandfather slept outside of the house. At about 11.00 p.m., my uncle came to me and woke me up to attend his natural calls, but I refused to join, my grandfather also stated that I am not intend to go along with him, but my uncle forcefully took me along with him to a hill area i.e., outskirts of Kondampet
Village”.
The consistent evidence of PW1, PW2 and PW4 with that of the contents of complaint and sec. 161 Cr.P.C statements clinchingly shows that the accused came to the injured at about 11.00 p.m., and took the PW4 along with him. Even though the
PW1 and PW4 refused for his command, accused used force against the PW4 and took the PW4 along him. The consistent evidence of all the said witnesses establishes the facts that accused used force against the PW4.
20.The learned defence counsel cross examined the PW1, PW2 and PW4 in which three of them withstood by the test of cross
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 14 of 34 examination and deposed that the accused insisted the PW4 to come along with him to attend natural calls, even though PW4 refused to join. The PW1 in his cross examination further stated that he was conscious while his grandson was taking away by accused. The PW4 was also deposed the same version that his grandfather was awake while he was taking away by the accused, but the PW2 in his cross examination deposed that her father was asleep while the accused came to take the PW4 along with him.
Even though the version of PW2 in the cross examination to the fact that the PW1 was slept or he was not slept, is contrary to the version of PW1 and PW4. But the injured/victim himself admitted that his grandfather was awaken and refused for the proposal of accused. Therefore, the version of PW2 in cross examination does not hit the root of prosecution’s case when the
PW1 and PW4 consistently deposed that PW1 was awaken at the time of incident and the accused used force against the PW4. The
PW1 who was aged more than 60 years might not have been resist the force used by the accused and the same is with that of the case of PW2 and PW4.
21.Here at this juncture in order to answer the question raised by the defence counsel that the injuries sustained by PW4 might have been caused by someone else, but not by the accused. We
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 15 of 34 must resort to the concept of “last seen theory/evidence” evolved by
Hon’ble Apex courts in several judgments. In Arvind @ Chhotu Vs.,
State, dt.10-08-2009, Hon’ble Delhi High Court, discussed about the “last seen theory/evidence” in deciding in Criminal Appeal
No.362/2001 and 236/2003 in para No.53…. Pertaining to the evidence against the abductors who had abducted Mahesh, a young businessman from Calcutta and against whom eye-witnesses had deposed of having taken along with the Mahesh, who was subsequently killed; the Supreme Court held that since the abductors had not rendered any explanation as to when they parted company with Mahesh, they must admit to their guilt. In
Para 34 of the decision it was held as under:- “34. When it is proved to the satisfaction of the court that
Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.”
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 16 of 34
In para No.58…. The fifth decision referred to is reported as (2002) 8 SCC 45 Bodhraj @ Bodha & Ors. Vs. State of Jammu &
Kashmir.
In para No.59…. Explaining the last-seen theory, in para 31 it was observed as under:- “31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists.
In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e.,
PW14 and PW15 and PW18; in addition to the evidence of
PW1 and PW2”.
22.In view of the findings given by the Hon’ble Delhi High Court in judgment cited supra categorically stated that, the last seen
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 17 of 34 theory can be taken into consideration when there is a supportive circumstantial evidence and it can be relied upon to draw an adverse inferenceagainst the accused. Such inference can be disrupted if the accused would tell the court what else happened to the injured/deceased, until he was in his custody. Here in this case the PW4 was forcibly taken by the accused for the purpose of attending natural calls even though the PW1 and PW2 resisted not to take the PW4 along with him but the accused forcibly took the
PW4 along with him. The PW1 and PW2 have last seen the PW4 with the accused and on the next day morning the PW4 came back to their house with injuries and the PW4 consistently deposed that he sustained injuries in the hands of accused. The counsel for accused merely posed suggestions that the injuries caused by someone else and the accused fell unconscious, as the accused is in high influence of alcohol. If that is the fact, accused should explain what had happened from the time when the accused taken
PW4 till he became unconscious, but there are no such facts brought before the court. In addition to that the PW4 injured himself categorically deposed before the court how brutally he was beaten by the accused. Therefore, the argument put forth by the defence counsel has no basis at all.
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 18 of 34
Therefore, the prosecution established the fact that the accused came to his house at 11.00 p.m., on 30-03-2018 in the high influence of alcohol and took the PW4 along with him, with the pretext of attending natural calls. It is proved that the PW4/injured was last seen with the accused, by PW1 and PW2. On the next day i.e., 31-03-2018 when the PW4 reached to his house at about 10.00 a.m. Thus, the point is answered in favour of the prosecution.
POINT:-[iii] Whether the PW4/P.Ganesh sustained injuries as
mentioned in the complaint and as specified in Ex.P.7/Medical
certificate?
23.The complainant/PW1 in his complaint/Ex.P.1 deposed that, “the accused took his grandson far away from his house under the influence of high alcohol without any reason bet his grandson with a stick, due to which he sustained severe injuries on his face and back, due to which he sustained swelling injuries. In addition to that the accused pulled the penis of his grandson by force, due to which he was sustained severe bleeding injury. Later he was shifted to hospital on 31-03-2018 with the help of 108 ambulance”. The
PW1 deposed the same version with regard to the injuries in his sec. 161 Cr.P.C statement and also in his chief examination before the court. The PW2 younger daughter of PW1 deposed the same version in her sec. 161 Cr.P.C statement as well as in her chief examination with regard to the injuries sustained by PW4. Likewise
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 19 of 34 the PW3 mother of PW4 and the circumstantial witness to the incident deposed that she received information about the same injuries from her sister and father.
24.The PW4/injured deposed in his chief examination that, “my uncle/accused took me to a hill area i.e., outskirts of Kondampet village after he was attending the natural calls, I requested him to take me back to the house, but he was raised in anger and bet me with stick on my back and also put stones in my mouth and gave me fist blows. The accused also removed my pant and undergarment and forcibly pulled my testicals and I was also profusely bleeding. I fell unconscious and I regained my conscious on the next day morning and went back to my aunt’s house”. The consistent version of PW1 to PW3 and PW4 supported by the circumstantial witness, altogether clinchingly shows that PW4 sustained injuries over his back, face and private part.Likewise the
PW6 one of the villager of PW2 deposed in his chief examination that, on one day at about 5 years back there were several persons gathered at the house of PW2 and she noticed injuries over the body of son of the sister-in-law of accused. Thus, the version of
PW6 is in corroboration with PW1 to PW4.
25.At this juncture we should see whether the prosecution could able to establish the injuries sustained by PW4 with any medical
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 20 of 34 evidence. The PW10/Dr.Jada Mabu who had examined P.Ganesh on 01-04-2018 deposed in his chief examination that “on 01-04- 2018 the patient by name P.Ganesh, S/o. Ilaiah came to our hospital/Gandhi Medical Hospital and he was admitted as an inpatient and I have conducted plastic surgery (skin grafting) over the penis of the injured. I found the skin over the penis is lost, hence skin grafting surgery was held and the injury grievous in nature and I have issued medical certificate vide MLC dt.24-06- 2018 stating that the injury sustained by P.Ganesh is “degloving injury of penis”. According to my knowledge the injured lost skin over the penis which is there from the date of his birth and it can be considered as a kind of disability/deformity. Ex.P.7 is the medical certificate of injured”.
26.In the present case the original medical certificate issued by
PW10 was lost in the court where the case was filed at first instance. The transferee court failed to transfer the original medical certificate along with the file. Upon which this court addressed several letters even such they reported it is not available. Hence, the concerned police filed the attested copy of medical certificate collected from the Department of Plastic Surgery, Gandhi Hospital,
Secunderabad.
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 21 of 34
27.The consistent evidence of PW1 to PW4 supported by the medical evidence of PW10 and Ex.P.7 it is established that the injured sustained degloving injury over penis. The counsel for accused conducted cross examination in which he has posed that the injuries were not caused by the accused and as he was high influence of alcohol and the injuries might have caused by anyone else. It was denied by all the material witnesses i.e., PW1 to PW4 and they have withstood by the test of cross examination.
28.The learned defence counsel raised an argument that, even though all material witnesses including the injured deposed that, injured sustained injuries over his back, face, but there is no medical evidence placed before the court to establish his injuries except the injuries mentioned in the Ex.P.7. It is true that the investigation officer failed to collect any medical certificate of injuries sustained by PW4 on the other parts of his body other than the private part.
29.The investigation officer has collected the photographs of the injured in which it is clearly visible that the injured/PW4 sustained injury on his lips and on his face along with the injury on his private part. Failure of the investigation officer to collect the medical certificate to show the details of other injuries sustained by the PW4 along with the injury over his private part is a lacuna in
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 22 of 34 the process of investigation, but that cannot be a sole basis to discard the entire evidence of prosecution, because the medical evidence deposed by PW10 along with Ex.P.7 altogether shows that the PW4 sustained grievous injury over his penis and plastic surgery was held i.e., skin grafting which suffice to show that the
PW4 sustained severe injury in the hands of accused.
30.The learned defence counsel further argued that there were no eye witnesses for the alleged offence has been committed by the accused. The PW4 himself who is an injured in the hands of accused came before the court and deposed that he had sustained injuries in the hands of accused in a brutal way and he had recollected every minute detail of the offence. Hence, there is no necessity of any further eye witness to believe the version of PW4.
Thus, the prosecution successfully established that the PW4 sustained injuries as mentioned in the Ex.P.7 in the hands of accused. Thus the point is answered in favour of prosecution.
POINT No.[iv]:- Whether the injury sustained by the PW4 comes
within the definition of section 320 of IPC thereby attracts the
offence punishable under section 326 of IPC or section 325 of
IPC?
31.The PW4 sustained injury over his private part/penis and lost his skin which is there since the date of his birth. The PW10 categorically deposed in his chief examination that he had
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 23 of 34 conducted plastic surgery for skin grafting and the injury noted as degloving injury of penis. Which shows that the PW4 sustained a deformitive injury due to the acts of accused and it comes within the head of firstly under section 320 of IPC and it can be considered as a disfiguration of penis, because due to the plastic surgery the original body part of PW4 is disfigured.
32.The learned defence counsel argued that, the injury sustained by PW4 is not any kind of permanent disability or emasculation, because the medical certificate does not reflect any kind of such observation. Hence, the injury sustained by the PW4 does not comes within the definition of section 320 of IPC i.e., grievous hurt.
33.On careful observation of medical certificate/Ex.P.7 issued by
PW10 which shows that plastic surgery was held to PW4 over his penis and the name of the operation is skin grafting for the injury of degloving injury over penis. The first head of section 320 of IPC which defines emasculation which means “the process of making a man feel less male by taking away his power and confidence:” The plastic surgery which was conducted against PW4 which obviously increases his efficiency while participating in sexual intercourse as rightly stated by the doctor that the PW4 lost the his skin over his penis for which skin grafting was held. Therefore, the injury
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 24 of 34 sustained by the PW4 comes within the head of emasculation which defined under section 320 of IPC.
34.At this juncture we should verify whether the act of the accused comes within the penal section i.e., 326 of IPC. According to the section 326 of IPC “a person must voluntarily cause grievous hurt against any person or persons with a dangerous weapon or means, then he/she shall be punished with imprisonment either description for a term which may extent to 10 years and shall also be liable to fine”. Here in this case according to the contention of the injured/PW4, the accused attacked with stick and the accused also put some stones in the mouth of PW4 and the accused was also pulled the penis of the PW4 so hardly which results into a grievous injury. The investigation officer/PW9 during the course of investigation recovered stick from the scene of offence in the presence of two panch witnesses, but the panch witnesses i.e., PW7 and PW8 did not support the recovery of stick in their presence and they were turned hostile. Hence, the material object/stick was marked as M.O.1 through PW9. The failure of the panch witnesses to depose evidence about the recovery of material object will not brush aside the entire evidence adduced by the prosecution. The counsel for accused raised an objection that the injury as mentioned under Ex.P.7 was not caused by any deadly weapon and
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 25 of 34 the other injuries as alleged by the PW4 were not identified by any medical practitioner by issuing any medical certificate. Therefore, the ingredients of section 326 of IPC does not attracts to the facts on hand.
35.Here in this case, the prosecution successfully established that the injury sustained by PW4 has mentioned under Ex.P.7 is grievous injury, but as per the version of PW4 it was caused by pulling the private part of the PW4 with hand by using force and the investigation officer failed to collect medical certificate of PW4 with regard to any other injury as mentioned by the PW4.
Therefore, there was no deadly weapon or means has been established by the prosecution in causing the injury as mentioned under Ex.P.7 which is a grievous one. Therefore, the ingredients of section 326 of IPC does not attract against the acts by the accused, but it comes within the ingredients of section 325 of IPC which is voluntarily causing grievous hurt.
36.The failure of the investigation officer to collect the medical certificate of other injuries sustained by PW4 other than the injury mentioned in Ex.P.7 and failure of prosecution to establish the fact that the other injuries sustained by PW4 was grievous in nature which was caused by a stick. These are considered to be fatal to the case of prosecution. Therefore, the prosecution successfully
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 26 of 34 established that the accused caused grievous hurt against PW4 with hands by holding the penis of PW4 so tightly and pulled it results in grievous injury as mentioned in Ex.P.7. Thus the ingredients of section 325 of IPC proved against the accused. Thus the point is answered in favour of prosecution.
POINT No. [v]:- Whether the accused/Itikala Venkanna who is
having control and custody of the PW4/P.Ganesh assaulted the
PW4 and contravene the section 75 of J.J. Act?
37.The section 75 of J.J Act which says that whoever having the actual charge of, or control over, a child, assaults, abundance, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abundant, abuse, expose or neglected in a manner likelihood would cause such child unnecessarily mental or physical suffering, shall be punishable with imprisonment for a term which may extent to three years or with fine of Rs.1,00,000/- or with both.
38.Herein in this case the accused took the control of PW4 in the guise of accompanying him for attending natural calls and he took him to faraway place i.e., at the outskirts of Kondampet village and assaulted the PW4 indiscriminately and caused severe injuries.
Therefore, section 75 of J.J Act well attracts against the accused.
The learned defence counsel failed to disprove the contents of
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 27 of 34 prosecution with any evidence. Thus the point is answered in favour of the prosecution.
POINT No.[vi]:- Whether the prosecution could able to prove the
charges under sections 326 of IPC and Sec. 75 of J.J.B Act –
2015 against the accused beyond all reasonable doubt?
39.The prosecution with the consistent evidence of PW1, PW2 and PW4 established that on 30-03-2018 at 11.00 p.m., the accused who was in the high influence of alcohol forcibly took the
PW4 who was aged 12 years, in to his custody on the pretext of accompanying him to attend natural calls. The PW1 and PW2 resisted the accused not to take the PW4 along with him, but he refused to hear the words of PW1 and PW2.
40.The accused took the PW4 to a faraway place from the residential house of PW4 and after attending natural calls the PW4 insisted to send him back to the house, but the accused hit the
PW4 with a stick and put stones into the mouth of PW4 and also pulled the penis of PW4 so tightly which results in bleeding injury.
The PW4 who was a minor and aged 12 years on the date of incident deposed before the court the entire incident without leaving any fact. The ability of PW4 to recollect the facts was also ascertained by the court by posing some questions for which he gave all the rational answers and after the incident he was
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 28 of 34 profusely bleeding fell unconscious and after gaining conscious he came back to house on his own, then he narrated the entire incident to PW1.
41.The PW1 and PW2 who were the eye witnesses while the accused took the custody of PW4 as well as circumstantial witnesses subsequent to the incident consistently deposed in the complaint, sec. 161 Cr.P.C statements as well as in their chief examination before the court all the facts without any break of link.
The PW3 another circumstantial witness and the mother of PW4 also supported the version of PW1, PW2 and PW4. Likewise the
PW6 another circumstantial also deposed that during morning hours of one day at about 5 years back many persons were gathered at the house of Itikala Venkanna and she had noticed that the son of sister-in-law of accused sustained injuries. Therefore, the supportive evidence of PW3 and PW6 which also in corroboration to the evidence of PW1, PW2 and PW4. The PW5 one of the circumstantial witness and PW7 and PW8 witnesses for preparation of CDF panchanama, did not support the preparation of CDF and recovery panchanama and they were turned hostile, except marking their signatures in the CDF cum seizure panchanama and no worthwhile evidence elicited from their cross examination, but it does not hit the root of the prosecution’s case as the CDF cum
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 29 of 34 seizure panchanama marked through PW9/investigation officer and material object stick was also marked through PW9.
42.The PW1 to PW4 and PW6 withstood by the test of cross examination by all the material objects without any deviation. The injured was immediately shifted to hospital for medical examination i.e., on 31-03-2018 and he was referred to Gandhi hospital for better treatment. There a plastic surgery was performed to the injured/PW4. The medical evidence given by PW10 along with the
Ex.P.7/medical certificate altogether is in corroboration with the oral testimony of PW1 to PW4 and PW6. The investigation officer/PW9 reiterated the contents of charge sheet and withstood by the test of cross examination. The prosecution established the facts from the time when the PW4 taken away by the accused and the manner of causing injuries against PW4 to till the PW4 returned to the house by weeping and with grievous injuries. The prosecution also proved beyond reasonable doubt that the injuries sustained by PW4 were grievous in nature. The accused failed to disprove the contention of the prosecution. The fact that the accused was under the influence of alcohol is a mitigating circumstance to impose lesser punishment, but it cannot be the basis to say that the accused did not entertain any guilty mind
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 30 of 34 while committing the offence. The rivalry between the accused and
PW1, also not proved by accused.
43.In view of the entire discussion made above the prosecution successfully proved that the accused voluntarily caused grievous hurt to PW4 and also used force against PW4 and caused grievous hurt to him. Therefore, the ingredients of sec. 325 of IPC well proved against the accused. The accused who took the control of
PW4 assaulted him which results in grievous injury to PW4. Thus, the ingredients of section 75 of J.J Act well proved against the accused. Hence, the offences under section 325 of IPC and section 75 of J.J Act proved against the accused. Thus, the point is answered in favour of prosecution.
44. POINT No. [vii]:-To what finding?
45.In view of the discussion made under point No.(i), the point is answered accordingly.
46.The offence was charged against under section 326 of IPC and sec. 75 of J.J Act – 2015. The offence which was proved against the accused under section 325 of IPC and sec. 75 of J.J. Act. As per section 222 of Cr.P.C the offence proved against the accused i.e., section 325 of IPC attracts lesser punishment than the offence charged against him under section 326 of IPC. Hence, no additional
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 31 of 34 charge has been farmed against the accused under section 325 of
IPC.
47.In the result, the accused found guilty for the offences under sections 325 of IPC and Sec. 75 of J.J. Act – 2015, and the accused is convicted under section 248 (2) of Cr.P.C.
( Typed by my Stenographer on my dictation, corrected and pronounced by me in Open Court on this the 18 th day of September, 2024)
Sd/-
Addl. Judl. Magistrate of First Class, Ramannapet 48. Hearing on the quantum of sentence, the convicted submitted that, he is having old aged parents to be taken care of and also eking his livelihood as daily labour if any stringent punishment has been imposed it results great loss to his life and prayed to take lenient view and impose lesser punishment.
49. The learned APP submitted that the offence which was committed by the accused is heinous in nature, if any lenient view has been taken it gives wrong message to the society. In addition to that the injured was 12 years on the date of incident and he is still suffering with deformity. Hence, prayed to impose stringent punishment against the accused.
50. The court has sympathy with the submissions made by the convicted. However, considering the nature of the offence and on considering frequent occurrence of these kind of offences the mitigating circumstances submitted by the accused appears to be less
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 32 of 34 weight, considering the legislative intention and also mitigating circumstances submitted by the convicted, I am of the considered opinion that a moderate view cannot be taken in the present case for imposing punishment on the accused and the court is not inclined to apply the Probation of Offenders Act against the convicted as the convicted is above the age of 21 years on the date of incident and the absolute wrong lies with the accused on the date of the incident.
51. In the result, this court is passing following sentence against the convicted for the offence under section 325 of IPC, the convicted
sentenced to undergo rigorous imprisonment for a period of three
years and shall also pay a fine of Rs.3,000/- (Rupees Three
Thousand only) in default of payment of fine shall undergo simple imprisonment for a period of six months. Further the convicted
sentenced to undergo rigorous imprisonment for a period of one
year for the offence under section 75 of J.J Act. Both the sentences shall run concurrently. The convicted is in judicial custody from 06- 04-2018 to 11-07-2018 i.e., 36 days and the judicial remand from 02-10-2023 to 08-11-2023 i.e., 37 days total 73 days shall be set off under section 428 of Cr.P.C from the total sentence period of three years. The M.O.1 shall be destroyed after lapse of appeal period.
52. The convicted is apprised of his right to prefer appeal against the sentence passed by this court. The convicted reported that he is having means to engage counsel for preferring the appeal.
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 33 of 34 53. The office is direct to furnish true copy of Judgment to the convicted forthwith.
(Typed to my dictation by the Stenographer, corrected and pronounced by me in the court on this the 18 th day of September, 2024)
Sd/-
Addl. Judl. Magistrate of First Class Ramannapet.
APPENDIX
1.Date of complaint:31-03-2018
2.Date of FIR31-03-2018
3.Name of the complainantYerra Lingaiah
4.Name of the accusedItikala Venkanna
5.Offence U/secSec 326 of IPC and Sec. 75 of J.J Act
6.Date of remand06-04-2018
7.Date of release11-07-2018
8.Bail was granted on 06-07-2018
9.Examination U/s 239 Cr.P.C19-01-2023
10.Commencement of Trial10-04-2023
11.Defence Evidence -Nil-
12.Examination U/s 313 Cr.P.C28-08-2024
13.Final Arguments11-09-2024
14.Dispositional (Final Judgment)18-09-2024
APPENDIX OF EVIDENCE.
PROSECUTION
PW1LW1/Complainant Y.Lingaiah PW2LW2/Circumstantial witnessI.Radhika PW3LW5/Circumstantial witness P.Renuka PW4LW6/Injured P.Ganesh PW5LW3/Circumstantial witness G.Yadagiri PW6LW4/Circumstantial witnessI.Sanjuva PW7LW8/Panch for scene & seizureI.Sanjeeva PW8LW7/Panch for scene & seizureI.Yadagiri
Dt.18-09-2024 Addl. JMFC, Ramannapet
(New) C.C.No.976/2021 – (Old) C.C.No.717/2018 – Page 34 of 34
PW9LW10/Investigation OfficeP.Shiva Naga Prasad PW10LW9/DoctorDr.J.Mabu
DEFENCE: Nil
EXHIBITS MARKED ON BEHALF OF
PROSECUTION
Ex.P.131-03-2018Complaint given by PW1 Ex.P.231-03-2018Sec. 161 Cr.P.C statement of PW5. Ex.P.331-03-2018Signature of PW7 on CDF cum seizure panchanama including rough sketch. Ex.P.431-03-2018Signature of PW8 on CDF cum seizure panchanama including rough sketch. Ex.P.531-03-2018First Information Report. Ex.P.631-03-2018CDF cum seizure panchanama including rough sketch. Ex.P.728-06-2018Attested copy of medical certificate of injured.
DEFENCE: -- Nil –
MATERIAL OBJECT:
M.O.1: Stick (Veepa Karra).
Sd/-
Addl. Judl. Magistrate of First Class, Ramannapet
// TRUE COPY //
Addl. Judl. Magistrate of First Class,
Ramannapet
Dt.18-09-2024 Addl. JMFC, Ramannapet