1POCSO S.C. No. 4 of 2018
IN THE COURT OF THE FAST TRACK SPECIAL COURT FOR
EXPEDITIOUS TRIAL AND DISPOSAL OF RAPE AND POCSO ACT
CASES :: SANGAREDDY
Present: Smt. T. Anitha II Additional District & Sessions Judge (FTC) Medak at Sangareddy FAC Fast Track Special Court For Expeditious Trial And Disposal Of Rape And POCSO Act Cases Sangareddy
FRIDAY, THIS THE 25th DAY OF MARCH, 2022
POCSO S.C.No. 4 of 2018
CRIME No.85 of 2017
Name of the complainantThe State of Telangana through, P.S. Sangareddy Town
Description of the accused MD. Ghouse Pasha S/o. Kankar Ali, Aged 21 years, Caste: Muslim, Occupation: Auto Driver, R/o.H.No.2-57, Shankarampet (A) Village and Mandal, Now residing at Nalsabgadda, Sangareddy.
Charge/sUnder Sections 366(A), 376 of IPC and Section 4 of POCSO Act.
Plead of accusedAccused pleaded not guilty.
Finding of the judgeFound guilty.
Sentence or order In the result, accused is found guilty for the offence punishable under sections 366(A), 376 IPC and Section 4 of POCSO Act. Accordingly, he is convicted under section 235(2) Cr.P.C.
The accused is sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.5,000/- for the offence punishable U/s 4 of POCSO Act. In default of payment of fine the accused further undergo 03 months of simple imprisonment punishment is imposed against the accused. In view of section 42 of
POCSO Act, no separate punishment is imposed against the accused for the offence under section 376
IPC.
2POCSO S.C. No. 4 of 2018
The accused further sentenced to under go rigorous imprisonment for a period of 2 years and to pay fine of Rs.2,000/- for the offence punishable u/s 366A
IPC. In default of payment of fine the accused further undergo 01 month simple imprisonment. Total fine amount Rs.7,000/-. All the imprisonments shall run concurrently.
The victim was aged about 16 years at the time of incident. Her father was died and she was assisting her mother in vegetable business. Having regard to the above pathetic situation of the victim girl, her financial condition and social status, this court considers it appropriate to recommend awarding an amount of
Rs.2,00,000/- to the victim girl, as final compensation, which would help her to meet her immediate needs.
So, Rs.2,00,000/- is decided as compensation amount.
Therefore, the secretary, DLSA is hereby directed to take steps to pay the said compensation amount of
Rs.2,00,000/- to the victim girl at the earliest.
The period of detention of accused ie from 07-04- 2017 to 03-06-2017 and from 13-09-2021 to 25-03-2022 shall be given set off as provided under section 428 of
Cr.P.C. Accused is informed of his right to appeal
before Hon’ble High Court and he is further informed
about his right to get free Legal Aid, in case, if prefers appeal. The free copy of judgment is furnished to the accused. The M.Os.1 and 2 deposited vide CPR
No.CPR No.7/15/2021 dated 15-11-2021 shall be destroyed after expiry of appeal time. The case property ie Auto bearing No.TS 15 UC 0731 deposited vide CPR
No.150/15/2017 dated 18-11-2017 in the court of
Hon’ble I Addl. District & Sessions Court, Medak at
Sangareddy, was given for safe custody to Station 3POCSO S.C. No. 4 of 2018
House Officer, P.S. Sangareddy Town. The police are directed to hand over the said Auto bearing No.TS 15
UC 0731 to the concerned and file acknowledgment
before this court after appeal time is over.
Prosecution conducted bySri. Ananth Rao Kulkarni, Addl. Public Prosecutor
Accused defended bySri. C. Vittal Reddy, Legal Aid Counsel.
This case is coming on before me on 22-03-2022 for final hearing in the presence of Sri. Ananth Rao Kulkarni, Public Prosecutor for the state and Sri C. Vittal Reddy, Legal Aid Counsel for Accused, upon perusing the material on record and upon hearing the arguments the court delivered the following:-
:: J U D G M E N T ::
The Inspector of Police, P.S.Sangareddy Town filed charge sheet against the accused for the offence punishable under Section 366(A), 376 of IPC and Section 4 of POCSO Act, 2012.
2. Brief facts of the case are that on 6-4-2017 at 20.30 hours PW1 came to Sangareddy Town police station and lodged complaint stating that she has three daughters and one son. Her husband died at about 6 years ago. She has been doing vegetable business. At about two months back she got introduced with one auto driver namely Ghouse Pasha (accused).
He used to visit vegetable shop of PW1 frequently. Ghouse pasha informed to PW1 that he was doing finance business and if she had any financial crisis he will arrange money. On 6-4-2017 at 6.pm said Ghouse Pasha (accused) visited the house of PW1 on his auto and asked about the financial matters and went away. Meantime her two daughters ie PW2 and
PW3 went to kirana shop and not returned to the home. PW1 searched for her daughters. She noticed that her younger daughter ie PW3 was coming 4POCSO S.C. No. 4 of 2018 to the residence. On questioning she informed that one auto person who visited their house gave lift to them to kirana shop but on the way he pushed her (PW2) out of auto and forcibly took PW2 with him on the same auto. Again PW1 started searching for her elder daughter. A few minutes later her elder daughter returned to home and revealed by crying that the auto person who visited their house t ook her along with her sister (PW3) in his auto and on the way he pushed her younger sister out of auto and forcibly took the victim girl(PW2) towards the dump yard situated at backside of ITI and committed rape on her.
3.Basing on the complaint, PW10 Inspector of Police, Sangareddy Town
PS registered the case in Cr.No.85 of 2017 under sections 366(A), 376 IPC and section 4 of POCSO Act, 2012 and issued FIR. Later he took up investigation. On 7-4-2017, at 16.00 hours the accused along with his auto apprehended by the police at his residence. After completion of investigation PW10 filed charge sheet.
4.Cognizance was taken under sections 366(A), 376 IPC, Section 4 of
POCSO Act, 2012 against the accused by the Hon’ble I Additional District and Sessions Judge, Medak at Sangareddy and numbered as POCSO
SC No. 4 of 2018.
5.As per the Proceedings No.774 of 2021, Dated 15-02-2021 of Hon’ble
I Addl. District & Sessions Judge, Medak at Sangareddy, this case is made over to this court.
6.On appearance of the accused, this court furnished copies of documents to him as required under section 207 of Cr.P.C. Charges under sections 366(A), 376 of IPC and Section 4 of POCSO Act, 2012 were 5POCSO S.C. No. 4 of 2018 framed under section 228 (2) of Cr.P.C., read over and explained to accused. He pleaded not guilty and claimed to be tried.
7.During the course of trial on behalf of prosecution PW.1 to PW.10 were examined and Ex.P.1 to Ex.P.17 and MO1 and MO2 were marked.
8.After closing of prosecution evidence accused was examined under section 313 of Cr.P.C. The incriminating circumstances which were appeared in the evidence of prosecution witness explained to him. He denied as false and reported as no defense evidence on his behalf.
9.Heard both sides.
10.Now the point for determination is:- “ Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt?”
11.PW.1 testified that she used to transport the vegetables on the auto of accused from vegetable market to the places where she want to sell the vegetables. Accused told with her that he was doing finance business and he will arrange money in case of any necessity to her. But she has not taken any amount from the accused. One day her two daughters went to kirana shop. While her two daughters were going to kirana shop the accused came on auto and asked them to board in his auto and he will drop them at kirana shop. Her two daughters boarded in the auto of accused.
After passing some distance, accused pushed her younger daughter (PW3) from the auto and taken away her elder daughter (PW2) in the auto. As her daughters were not return to the home she went to search for them. She found her younger daughter was coming to the house. Her younger daughter informed that the auto driver has taken away her elder daughter 6POCSO S.C. No. 4 of 2018 forcibly. They cried and were preparing to give complaint to police.
Meanwhile her elder daughter came and informed that the accused took her to dump yard and committed rape on her. On that she went to police station and lodged complaint. Through PW1 complaint was marked as Ex.P1. In the court hall witness identified the accused and stated that he is Ghouse
Pasha.
In cross-examination, PW1 denied to a suggestion that she borrowed the amount from the accused and invested in the vegetable business and not repaid the amount to the accused.
12.PW.2 narrated that she know the accused and he is an auto driver.
Herself and her mother used to transport vegetables on the auto of accused from the vegetable market to the places where they want to sell the vegetables. Accused told with them that he was doing finance business and he will arrange money in case of any necessity to them. But her mother told him that they do not want any amount. One day accused came to her house and told her mother that he will give amount in finance. But her mother said that they were not in need of any amount. When herself and her sister were going to kirana shop, the accused came on his auto and said that he was going on that route and he will drop them at kirana shop.
As accused is known person, she and her younger sister boarded in the auto. Her sister came from hostel so she didn’t know the accused. Her younger sister sat on the door side of the auto and she sat inside of the auto. As the auto crossed the shop she asked the accused where he was taking them. On that the accused told her to shut up. Her younger sister questioned the accused on that the accused pushed her away from the 7POCSO S.C. No. 4 of 2018 auto. The accused took the auto into a tin shed at dump yard and committed rape on her. After that he left her at that place and went away.
She had the money given by her mother. While she was coming to the house her mother came to her and she informed the incident to her mother.
They went to police station and her mother lodged compliant. Further she stated that she was examined by police twice. Circle Inspector of police and also Women Sub-Inspector recorded her statement. She also gave statement before the Magistrate. Police referred her to the Government hospital at Sangareddy. Later she went to Gandhi Hospital. Through PW2 her underwear was marked as MO1 .
In the cross-examination PW2 stated that after completion of work in the house she used to attend the vegetable business along with her mother.
She admitted that there are five or six kirana shops in between her house to main road. On the next day morning she went to hospital. She denied to a suggestion that the accused never committed rape on her and due to financial issues her mother lodged complaint.
13.PW3 who is younger daughter of PW1 and sister of PW2 stated that she was staying in the hostel and came to the house from the hostel. On the day of incident accused came to her house and was talking with her mother. Herself and her sister (PW2) were going to Kirana shop. At that time Muslim person who was auto driver and who was talking with her mother came there on his auto. He questioned them as to where they were going. Her sister informed to him that they were going to the kirana shop.
The accused asked to board in his auto and he will drop them at kirana shop. Initially her sister (PW2) told with him that they will go but he said 8POCSO S.C. No. 4 of 2018 that he was going on the same route. Then herself and her sister boarded in the auto. She sat on the door side and her sister (PW2) was sitting on the inside of the auto. The said person had not stopped the auto in front of the kirana shop. After passing some distance as she sat on the door side, he pushed her out of the auto and had taken away her sister with him. For some distance she followed the auto and shouted about her sister. But he did not stop the auto. Then she returned to the house and informed the incident to her mother. Herself and her mother searched in the streets for one hour, but they did not find her sister. After some time they found that her sister was coming to the house and she was weeping. On questioning she informed that the said person took her to some place and committed rape on her. She identified the accused in the court hall.
In the cross examination, she stated that within five minutes of leaving the house auto driver came to them. On that day her mother and sister in law Shantha was present in the house but she informed the incident to her mother only. Shantha never accompanied them to search for PW2. She denied a suggestion that on the date of incident she was in the hostel.
14.PW4 deposed that Police called him along with Lw4/Shivashankar to the scene of offence situated near to Ganesh cutting shop. Along with the police victim girl was present. She showed the scene of offence at Ganesh cutting shop to the police. Police conducted scene of offence panchanama at Ganesh cutting shop, Netajinagar and prepared rough sketch. From there police took them to the scene of offence situated at ITI. There police drafted scene of offence panchanama and drawn rough sketch. As per
PW4 on the said documents he and also LW4 affixed their signatures.
9POCSO S.C. No. 4 of 2018
Through PW4 the scene of offence panchanama prepared at Ganesh Hair
Style was marked as Ex.P2 and rough sketch was marked as Ex.P3 . The second secne of offence panchanama prepared at ITI was marked as
Ex.P4 and the rough sketch marked as Ex.P5.
In cross-examination PW4 denied to a suggestion that he signed on the panchanama in the police station.
15.PW5 Woman Sub-Inspector of Police stated that, she recorded the 161 statements of victim girl.
In the cross-examination she stated that she recorded the statement of victim girl at night hours on 6-4-2017.
16.PW6 testified that, Pw1 is her aunt and she came to her house.
Children of PW1 went to kirana shop. One Muslim boy committed rape on the daughter of Pw1 and the Victim was referred to hospital. Doctors examined the victim girl and opined that she was subjected to rape. As per
PW6, along with her one muslim person was also present on the said date.
Police conducted panchanama and seized one blue colour drawer in their presence. Witness identified the underwear (MO1). As per PW6 she signed on panchanama. Through PW6 seizure panchanam was marked as
Ex.P6.
17.PW7 deposed that on 7-4-2017 on instructions of MRO, he and LW9/
Anjaiah went to the Sangareddy town police station. One person was there in the police station. Police informed to them that the said person was involved in a rape case and asked them to enquire with him. Accordingly they both questioned the said person. He revealed his name as
Mohd. Ghouse Pasha. The said person confessed that he has taken away 10POCSO S.C. No. 4 of 2018 two girls and he pushed away the younger one from the auto. Later he took the elder one near to ITI and committed rape on her. The accused shown the auto and also his underwear and police seized the auto and under wear.
Through PW7 underwear of accused was marked as MO2 and confession cum seizure panchanama was marked as Ex.P.7. Photographs of auto along with CD was marked as Ex.P.11.
In the cross examination PW7 denied that he signed in the panchanmaa in the police station.
18.PW8 Medical officer stated that on 6-4-2018 she enquired the history of victim and also examined her. She collected the vaginal smears and swabs. She conducted general physical examination and also local examination of Genetaria. She noticed that there was no trauma on the any part of body of victim girl. She collected the underwear of victim girl. She sent the relevant material to FSL. Subsequently she received the FSL report. Basing on the FSL report and on her clinical finding she gave opinion that there was evidence of sexual intercourse. Through PW8 the investigation of sexual offences report was marked as Ex.P8, FSL report was marked as Ex.P9 and final opinion was marked as Ex.P10.
In the cross examination she denied that she has not followed the proper procedure as per norms.
19.PW9 Associate Professor, Forensic medicine, Osmania Medical college stated that, on 07-04-2017, she received a requisition from SHO of
Sangareddy to conduct age determination examination to the victim girl.
Accordingly she conducted general examination and Radiological examination to the victim. As per PW9 the victim is aged about 16 years as 11POCSO S.C. No. 4 of 2018 on the date of examination. Through PW9 age certificate of victim girl was marked as Ex.P12. She denied to a suggestion that without following proper procedure she issued age certificate on the interest of police.
20. PW10 Circle inspector of police, Sangareddy deposed that on 6-4-2017 at 2030 hours he received complaint from PW1. Basing on that he registered case in cr.No. 85/2017 u/s. 366(A), 376 IPC and Sec. 4 of
POCSO Act and issued FIR. He recorded the statements of PW1 to PW3.
On his instructions PW5 (women sub inspector of police) recorded the statement of victim girl (PW2). Along with requisition he sent the victim girl to Govt. hospital for examination. PW8, Medical officer examined the victim girl and collected smears and swabs. In the presence of mediators i.e. LW6 and PW6 he seized the blue colour under wear of victim. He sent all the items to the FSL for analysis.
PW10 further stated that on 7-4-2017 he visited the scene of offence situated at Ganesh Hair style, Netaji nagar, and conducted scene of offence panchanama in the presence of LW4, PW4 and also drawn rough sketch.
From there they rushed to the second scene of offence situated at Dump yard, back side of ITI Sangareddy and conducted scene of offence panchanama and drawn rough sketch in the presence of same mediators.
He sent the victim girl to the Gandhi medical college for determination of age. Accordingly PW9, Associate Professor of Osmania Medical College examined the victim girl and issued the age certificate stating that the victim was aged about 16 years. On the same day, the detective police apprehended the accused and produced before him along with auto. At the time of enquiry, as the accused was going to made confession statement, 12POCSO S.C. No. 4 of 2018
PW10 secured the presence of mediators ie Pw7, Lw9 and recorded confession cum seizure panchanama of accused. He seized auto bearing
No.TS15UC0731 and brown colour drawer of accused. He forwarded the seized under wear of the accused also to FSL for analysis. He sent the accused to Govt. Hospital for conducting potency test. Accordingly Lw12
Chief Medical Officer of Govt. Head quarters hospital, Sangareddy conducted the test and opined that there was nothing to suggest that the accused was not capable of performing the sexual act. He effected the arrest of accused by issuing arrest memo and produced before the court.
He filed the requisition before the Chief Judicial Magistrate to record the 164 statement of victim girl. Accordingly Lw13, Judicial Magistrate of First
Class recorded the statement of PW1 and PW2. After receiving FSL report he collected the final opinion from Medical Officer (Pw8). She opined that there was evidence of sexual intercourse but direct evidence of forcible intercourse is there. PW10 deposited the case property before the court vide CPR.No. 150/15/2017. After completion of investigation he filed charge sheet. Through PW10 FIR, Potency test report, photographs along with CD of the auto bearing No.TS15UC0731, 164 Cr.P.C. statement of PW1, and 164 statement of victim girl were marked as Ex.P.13 to Ex.P.17 respectively.
21.Present case was filed by prosecution under sections 366-A, 376 IPC and Section 4 of POCSO Act.
OFFENCE U/S 366-A IPC:
To establish the guilt under section 366- A IPC, the prosecution has to establish the following ingredients:
13POCSO S.C. No. 4 of 2018
1.That a minor girl was induced by the accused;
2.That she was induced to go, and
3.That she was induced with an intent that she might or knowing that it was likely that she would be forced or subjected to sexual implicit intercourse with any other person.
22.In the light of above provision of law when we looked into the evidence of prosecution witnesses, through PW9 (Associate Professor
Osmania college) prosecution got marked age certificate of victim as
Ex.P.12. As per Ex.P.12 on 07-04-2017, Medical Officer conducted general physical examination, dental examination and also radiological examination to the victim. She had given opinion that the victim was aged about 16 years. In this regard, the counsel for accused argued that the victim while giving evidence, stated that she was aged about 21 years. So her age was 18 years at the time of offence and she was not minor. But, in the cross- examination of PW9 nothing was elicited to the effect that without conducting prescribed tests she had given the age proof certificate of the victim girl. Since the victim is illiterate her approximate statement that she was 21 years old as on the date of giving evidence can not get high evidentiary value when there is medical evidence. By marking Ex.P.12 and by examining PW9, the prosecution established that on the date of incident, the victim was aged about 16 years and she was a minor girl.
23.As per PW2 (victim girl) and PW3 (younger sister of victim girl), accused Ghouse Pasha made both of them to sit on his Auto with an 14POCSO S.C. No. 4 of 2018 wording that he will drop them at Kirana shop. But after passing some distance, the accused pushed away PW3 and took the victim girl ie PW2 forcibly in his auto to the dump yard. There he committed rape on her. In the cross-examination of PW2 and PW3 it was suggested that the accused never took away the victim girl and they both were speaking falsehood. In this regard, the counsel for accused pointed out the contradiction in between the evidence of PW2 and also the statement given before the
Magistrate under section 164 Cr.P.C. As per the statement of victim(PW2)
in the cross examination, the accused had shown a knife to her, as such she has not raised voice. Whereas in 164 statement (Ex.P.17) she stated that the accused with the kerchief tied her mouth and made her not to raise voice. This court felt that it is not the material contradiction and cannot go into the roots of the case. What the court has to consider in this case is whether the accused has taken away the victim minor girl or not? The evidence of PW2 and PW3 is corroborating with each other and established that the accused induced the victim to sit in his auto and has taken away the victim girl to dump yard for the purpose of having sexual intercourse. As such the prosecution established all the three ingredients of section 366-A
IPC.
24. OFFENCE U/S 376 IPC and U/S 4 OF POCSO ACT:
Section 376 IPC probates the punishment for the offence of rape.
Whereas Section 375 IPC defines the offence of rape. As per section 375
IPC, a man is said to commit the “Rape “ if he - 15POCSO S.C. No. 4 of 2018
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her
to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,under the circumstances falling under any of the following seven descriptions:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
16POCSO S.C. No. 4 of 2018
Fourthly -With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly -With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under eighteen years of age.
Seventhly - When she is unable to communicate consent.
Explanation 1- For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
17POCSO S.C. No. 4 of 2018
Section 3 of Protection of children from sexual Act of 2012:defines the penetrative sexual assault where as Section 4 of Protection of children from sexual Act of 2012 provides the punishment for penetrative sexual assault.
Since, both the offences under section 376IPC and 4 of POCSO Act, 2012 are co-relative, for the sake of convenience, this court is going to discuss the facts of the case on the light of above two provisions of law.
25.The competent witness to state about the act of rape, is victim girl (PW2). According to her, while she along with her sister was going to kirana shop, accused stopped his auto and told that he will drop them at shop. But in the mid way he thrown away her sister and took the victim girl to the back yard of ITI and committed rape on her. It was suggested to
PW2 that the accused has not committed rape and as the accused demanded repayment of amount, PW1 (mother of victim) lodged false complaint. But the accused has not adduced any evidence with regard to borrowing amount by PW1 and also his demand for repayment. No parent can lodge a false complaint of rape on account of future of girl child. It will degrade the character and conduct of girl child in the society. So, the said argument advanced by the counsel for accused is baseless and not acceptable. No where did it seems from the cross-examination of PW2 that she was lying and her testimony was not be believed.
26.It is the contention of counsel for accused that there are residential houses near to dump yard and if PW2 shouted, certainly residents will come and rescue Pw2. Further the learned counsel submitted that the 18POCSO S.C. No. 4 of 2018 police have not prepared the rough sketch on the spot and those documents were prepared in the police station. In cross-examination, PW4 (panch witness to scene of offence panchanama and rough sketch) stated that he has not signed on Ex.P.3 and Ex.P.5. Basing on that admission the above said argument was advanced by the counsel for accused. But the same panch witness PW4 in the cross examination denied to a suggestion that he signed on the panchanama in the police station. The above admission is a stray admission. When we considered the entire evidence he categorically stated that he put total 4 signatures on that day and all the documents were prepared in his presence at respective scene of offences.
As such we can place reliance on Ex.P.3 and Ex.P.5. Rough sketch which was prepared at dump yard ie Ex.P.5 reflects the bushes surrounding and opposite to the scene of offence. No residential house near to the scene of offence is reflecting in Ex.P.5. The investigating officer (P10) also stated that there are no residential houses surrounding to the dump yard. So, there was no scope for anyone to witness the incident and rescue PW2.
Ex.P.4 scene of offence panchanama and Ex.P.5 rough sketch reflects a tin shed at dump yard. Ex.P.4 (scene of offence panchanama) and Ex.P.5 (rough sketch) are corroborating with the evidence of PW2. From the said documents, the prosecution established the location of scene of offence ie tin shed at dump yard .
27.In this case, the Medical Officer, PW8 evidence shows that she collected vaginal smears and swabs from the victim. PW6 (panch witness) stated that the underwear of the victim was seized by the police. Another panch witness PW7 stated that police seized the auto and underwear of 19POCSO S.C. No. 4 of 2018 accused. Ex.P.7(confession cum seizure panchanama of accused) reflects that the police seized MO2(underwear of accused) and it was in brown colour. The investigating officer PW10 stated that he send all the seized material to FSL. Ex.P.9 FSL report reflects that the item no.1,2 and 5 6 are having semen and spermatozoa. The item no.1 was cotton swab and item no.2 was dried Smear and the item no.5 is turbid liquid and item no.6 is the brown colour under wear. So, as per EX.P9 the vaginal smears and swabs which were collected from the victim and also the under wear of the accused were having the presence of semen and spermatozoa. Unless, the accused penetrates his penis into the vagina, the semen or spermatozoa will not be detected from the vaginal collection of victim girl ie
PW2. From the evidence of PW8 coupled with Ex.P.9, the prosecution established the penetrative sexual assault on PW2.
28.It is argued by the defence counsel that the accused has not committed any forcible sexual intercourse. Further argued that if the accused had committed any forcible intercourse, there might be injuries found on the body of victim and it may be concensual act. Further submitted that absence of injuries on the body of victim itself shows that the accused has not committed any penetrative sexual assault. There is no hard and fast rule that the presence of injuries on the body of victim is must in rape cases. As already stated above, the victim was minor as on the date of incident. So, the consent of the child under eighteen years of age is irrelevant and would be of no consequences.
29.The counsel for accused pointed out the statement of PW6 (panch witness). She stated in the cross examination that on the said date no one 20POCSO S.C. No. 4 of 2018 came to the house of PW1. Basing on that statement it was argued that the accused never went to the house of PW1 and PW1 to PW3 gave false statement that the accused came to their house. PW6 is relative of PW1.
She may not observe as to the persons who had little conversation with
PW1 and left the house. Further, PW6 stated that on that day children of
PW1 went to kirana shop in between 9 or 10 AM and they returned to the house at 11.00 AM. But, the same witness stated on that day at 10.00 or 11.00 AM, she came to the house of PW1. If really children of PW1 left the house by 9 or 10 AM, as stated by her, there was no scope for PW6 to notice when they left the house and returned to the home as she came to the house of PW1 at 11.00 AM. PW6 further stated that in between 10.00 to 11.00 PM they went to hospital. From what she said it was understood that she had not made a time note for the day. However, when the evidence of PW2 inspire confidence, the minor contradictions cannot be thrown out the case of prosecution.
30.As discussed in the above paragraphs, PW2 categorically stated that the accused in an auto took her to the tin shed situated at dump yard and committed rape on her. Further there is sufficient corroborative medical evidence that the accused committed penetrative sexual assault on the victim girl. Section 29 of Protection of Children from Sexual Offence Act, 2012 states that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 of this
Act, the special court shall presume, that such person has committed or abated or attempted to commit the offence, as the case may be unless the contrary is proved. The accused has not rebutted the presumption by 21POCSO S.C. No. 4 of 2018 adducing evidence or through cross examination. On the other hand, the prosecution established from the evidence of PW1 to PW3 and from the evidence of Medical Officer (PW8) and Ex.P.10 (final opinion of PW8), that the accused committed penetrative sexual assault on PW2. As such the ingredients under section 376 IPC and section 4 of POCSO Act, established beyond all reasonable doubt.
31.As discussed in the above paragraph, prosecution proved the guilt of accused under section 366(A), 376 IPC and section 4 of POCSO act.
Accordingly, point is answered.
32.In the result, accused is found guilty for the offence punishable under sections 366(A), 376 IPC and Section 4 of POCSO Act. Accordingly, he is convicted under section 235(2) Cr.P.C.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open Court, on this the 25 th day of March, 2022.
II Additional District & Sessions Judge (FTC) Medak at Sangareddy FAC Fast Track Special Court For Expeditious Trial And Disposal Of Rape And POCSO Act Sangareddy 22POCSO S.C. No. 4 of 2018
Heard the accused on quantum of sentence. Accused submitted that he has not committed any offence and he has three small children and all the family members depended upon his income and requested the court to take lenient view.
This is the crime committed on 6-4-2017. Section 4 of POCSO Act provides punishment for penetrative sexual assault, either description for a term which shall not be less than 7 years but which may extend to imprisonment for life and shall also be liable to fine. Section 376 IPC also provides the same punishment. Section 42 of POCSO Act of 2012 states that when the offence is punishable under this act and also under other sections of Indian Penal Code, then notwithstanding contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this act or under the Indian Penal Code as provides for punishment which is greater in degree. Since both sections are providing same punishment the accused can be sentenced under POCSO
Act of 2012.
In this case the accused is aged about 25 years and eking his livelihood as an auto driver. Having regard to the facts and circumstances of the case, age of accused and to meet the ends of justice the accused is sentenced to undergo rigorous imprisonment for 7 years and to pay fine of
Rs.5000/- for the offence punishable U/s 4 of POCSO Act. In default of payment of fine the accused further undergo 3 months of simple imprisonment punishment is imposed against the accused. In view of section 42 of POCSO Act, no separate punishment is imposed against the accused for the offence under section 376 IPC.
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The accused further sentenced to under go rigorous imprisonment for a period of 2 years and to pay fine of Rs.2000/- for the offence punishable u/s 366A IPC. In default of payment of fine the accused further undergo one (01) month simple imprisonment. Total fine amount Rs.7,000/-.
All the imprisonments shall run concurrently.
The victim was aged about 16 years at the time of incident. Her father was died and she was assisting her mother in vegetable business. Having regard to the above pathetic situation of the victim girl, her financial condition and social status, this court considers it appropriate to recommend awarding an amount of Rs.2,00,000/- to the victim girl, as final compensation, which would help her to meet her immediate needs. So,
Rs.2,00,000/- is decided as compensation amount. Therefore, the secretary, DLSA is hereby directed to take steps to pay the said compensation amount of Rs.2,00,000/- to the victim girl at the earliest.
The period of detention of accused ie from 07-04-2017 to 03-06-2017 and from 13-09-2021 to 25-03-2022 shall be given set off as provided under section 428 of Cr.P.C. Accused is informed of his right to appeal before
Hon’ble High Court and he is further informed about his right to get free
Legal Aid, in case, if prefers appeal. The free copy of judgment is furnished to the accused. The M.Os.1 and 2 deposited vide CPR No.7/15/2021 dated 15-11-2021, shall be destroyed after expiry of appeal time. The case property ie Auto bearing No.TS 15 UC 0731 deposited vide CPR
No.150/15/2017 dated 18-11-2017 in the court of Hon’ble I Addl. District &
Sessions Court, Medak at Sangareddy, was given for safe custody to
Station House Officer, P.S. Sangareddy Town. The police are directed to 24POCSO S.C. No. 4 of 2018 hand over the said Auto bearing No.TS 15 UC 0731 to the concerned and file acknowledgment before this court after appeal time is over.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open Court, on this the 25 th day of March, 2022.
II Additional District & Sessions Judge (FTC) Medak at Sangareddy FAC Fast Track Special Court For Expeditious Trial And Disposal Of Rape And POCSO Act Sangareddy
APPENDIX OF EVIDENCE
WITNESS EXAMINED
For Prosecution For Defence
PW.1: Mother of the victim - NIL - PW.2: Victim PW.3: Sister of victim PW.4: Mohd. Ahmed Jan i PW.5: M. Venkatamma PW.6: Shantamma PW.7 Ch. Pentesh PW8 Dr. Sucheritha PW9 DR. B. Jhansi Laxmi PW10 M. Ramakrishna Reddy
EXHIBITS MARKED
For Prosecution Ex.P1 complaint Ex.P2 Scene of offence panchanama prepared at Ganesh Hair Style Ex.P3 Rough Sketch Ex.P4 Scene of offence panchanama prepared at the back side of ITI Ex.P5 Rough Sketch Ex.P6 Seizure panchanama Ex.P7 Confession cum seizure Panchanama Ex.P8 Investigation of Sexual offences report. Ex.P9 FSL Report. Ex.P10 Final Opinion of PW8 Ex.P11 Photograph of auto along with CD Ex.P12 Age Certificate Ex.P13 FIR Ex.P14 Potency Test Report Ex.P15 Photographs along with CD of the auto bearing No.TS15UC0731. Ex.P16 164 Cr.P.C statement of Vadde Durgamma (PW1) Ex.P17 Section 164 Cr.P.C Statement of victim girl.
For Defence - NIL - 25POCSO S.C. No. 4 of 2018
MATERIAL OBJECTS
MO1 Underwear of victim Girl
MO2 Under wear of the accused
II Additional District & Sessions Judge (FTC) Medak at Sangareddy FAC Fast Track Special Court For Expeditious Trial And Disposal Of Rape And POCSO Act Cases Sangareddy 26POCSO S.C. No. 4 of 2018