IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER
POCSO ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
VIZIANAGARAM
Present:- Sri V.Venkateswara Rao Spl.Judge for trial of cases under POCSO Act- Cum-I Addl.District & Sessions Judge, Vizianagaram.
Wednesday, this the 28th day of March, 2018
P.O.C.S.O. SESSIONS CASE No.11/2016
1Name of the Complainant:State represented by the Sub DivisionalPoliceOfficer, Vizianagaram.
2Name of the accused:Balivada Vijaya Kumar @ Bujji, S/o Easwara Rao, 28 Years, Kapu by caste, Resident of H.No.481, NTR Junction,P.B.Colony, Vizianagaram.
3Date of offence: Prior to 09.01.2016 4Place of offence:H.No.694,P.B.Colony, Vizianagaram.
5Date of complaint:09.01.2016 6Date of apprehension:10.01.2016 7Whether the accused is in jail:Accused is on bail. or bail 8Date of commencement of:23.08.2017 trial 9Date of close of trial:16.03.2018 10Date of sentence or Judgment:28.03.2018
EXPLANATION FOR DELAY IN SESSIONS COURT:- The case was filed before this Court under POCSO Act. In this case, on 11.08.2016 charges u/Ss.376(2)(i) and 417 of I.P.C., and Section 5(l)(ii) r/w 6 of POCSO Act against the accused were framed, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. In this case P.Ws.1 to 13 were examined and Exs.P.1 to P.13 were marked. The accused is examined under Section 313 Cr.P.C., for the incriminating evidence against him, for which he denied the same. After concluding the arguments Judgment
pronounced on 28.03.2018.
Sd/- V.Venkateswara Rao
I Additional District and Sessions Judge Vizianagaram.
IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER
POCSO ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
VIZIANAGARAM
Present:- Sri V.Venkateswara Rao
Spl.Judge for trial of cases under POCSO Act-
Cum-I Addl.District & Sessions Judge,Vizianagaram.
Wednesday, this the 28th day of March, 2018
P.O.C.S.O. SESSIONS CASE No.11/2016
Name of the ComplainantState represented by the Sub Divisional Police Officer, Vizianagaram.
Name of the accused Balivada Vijaya Kumar @ Bujji, S/o Easwara Rao, 28 Years, Kapu by caste, Resident of H.No.481, NTR Junction, P.B. Colony, Vizianagaram.
Chargescharges under Sections 376(2)(i) and 417 of I.P.C., and Section 5(l)(ii) r/w 6 of POCSO Act. Plea of the accusedAccused pleaded not guilty
Finding of the Judge Accused found guilty
Sentence of order In the result, the accused is found guilty for the offence under Sections 376(2)(i) and 417 of IPC and section 5(l)(ii) read with 6 of The Protection of Children from Sexual Offences Act, and he is convicted under Section 235 (2) of Cr.P.C., for the said offences. When questioned with regard to the sentence, to be imposed against him accused pleaded mercy and further stated that, “I am not married. I have to look after my mother. I have no father” and pleaded mercy. Taking into consideration the facts of the case that the accused raped P.W.2 from the age of her childhood and sexually exploited her taking advantage of her innocence by inducing her and threatened her not to reveal the same to anybody and if she reveal the same, he will not marry her on false promise to marry her, so he is not entitled to any beneficial provisions of Probation of Offenders Act. This kind of offence has to be punished with some deterrent punishment. Since the offence under section 376(2)(i) of IPC and : 2 :
Section 5(l)(ii) read with 6 of Protection of Children from Sexual Offences Act, are of the same nature and the accused being convicted for the offence under section 5(l)(ii) read with 6 of Protection of Children from Sexual Offences Act, no separate sentence imposed on accused for the offence under Section 376(2)(i) of IPC.,
Taking into consideration the facts of the case, the accused is sentencedto undergoRigorous imprisonmentfor a period of 12 years and also to pay fine of Rs.50,000/- and in defaultto undergo one year simple Imprisonment for the offence under Section 5(l)(ii) r/w 6 of Protection of Children from Sexual Offences Act. He is sentenced to undergo Rigorous imprisonment for a period of One (1) year for the offence under Section 417 of IPC and to pay a fine of Rs.25,000/- in default to suffer simple imprisonment for a period of three
months.
It is further ordered that the sentences of imprisonment of accused imposed for the offences under Sections 417 of IPC, and section 5(l)
(ii) read with 6 of the Protection of Children from Sexual offences Act, shall run concurrently.
Accused is entitled to set off under section 428 of Cr.P.C., for the remand period, if any, already undergone by him. Total Fine amount of Rs.75,000/-, if paid, shall be paid to the Victim child under section 357(1) of Cr.P.C., after expiry of appeal time. It is also recommended to District Legal Services Authority under Section 357(A) of Cr.P.C., to award appropriate compensation to P.W.2, who is a victim of rape case.
The unmarked non-valuable property, if any, shall be destroyed after expiry of appeal time. Accused is informed of his right to prefer appeal.
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Prosecution conducted byAddl.Public Prosecutor, Vizianagaram.
Defence conducted bySri K. Ravi Babu, Advocate for accused.
J U D G M E N T
The State represented by the Sub Divisional Police Officer,
Vizianagaram filed the charge sheet against the accused Balivada Vijaya Kumar @ Bujji, Sections 376(2)(i) and 417 of I.P.C., and Section 5(l)(ii) r/w 6 of Protection of Children from Sexual Offences Act, herein after be called as ‘Act’, in Crime
No.5/2016 of II Town Police Station, Vizianagaram.
2.The brief facts of the case of the prosecution are as follows:
The victim girl is elder daughter of P.W.1 P. Mamatha, aged about 16 years, studied upto 7th class at MPUP School, PB Colony, Vizianagaram and discontinued her studies. The accused is a resident of same colony, cousin brother of Mamatha and living by running Auto rickshaw, used to visit their house and moved with the victim girl very closely and made the victim to believe his deceitful words that he loves her and he would marry her. While so, on the day of
Dushara festival, 2015 in between 18-00 to 19-00 hours, the accused visited their house and found the victim girl alone, took her into the bath room situated under the steps at ground floor, had sexual intercourse with her forcibly and asked her not to disclose to any one. From then, they have participated in sexual intercourse for 7 to 8 times in the bath rooms of upstairs and ground floor. On the afternoon of 06.01.2015 when the victim girl suddenly collapsed the mother and grandmother of victim took her to Dr. Srinivasa Rao, RMP, a private medical practitioner, who examined the girl and informed that she is carrying 3rd month pregnancy. On knowing the facts, the mother of victim girl raised dispute before the elders Velichetti Babu Rao and Chiti Appa Rao, where the accused denied the entire facts and refused to marry the victim girl. Later, on 09.01.2016 they approached the Social Women Worker i.e., Boyi Ramanamma and approached to : 4 :
the police station and lodged a report against the accused, basing on which V.
Sree Ramulu, Sub Inspector of police registered a case in Cr.No.5/2016 under
Sections 376(2)(i) and 417 of I.P.C., and Section 5(l)(ii) r/w 6 of POCSO Act and submitted original F.I.R., and the Sub Divisional Police Officer, Vizianagaram arrested the accused on 10.01.2016 and sent him for remand. After completion of investigation filed charge sheet. Hence, the charge.
3.After filing of the charge sheet, this Court being a Special Court, took cognizance of the case against the accused for the offence under Sections 376 & 417 of I.P.C., and Section 5(l) r/w 6 of Protection of Children from Sexual Offences
Act.
4.After appearance of the accused, he engaged Advocate of his choice.
After hearing, charges under Sections 376(2)(i) and 417 of I.P.C., and
Section 5(l)(ii) r/w 6 of Protection of Children from Sexual Offences Act
were framed, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
5.To prove the case of prosecution, P.Ws.1 to 13 were examined and
Exs.P.1 to P.13 documents were marked.
6.After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C., and he denied the incriminatory evidence against him and further stated that his marriage was settled and on 6th called him to Women
Police Station and he went there and from there he went to II Town Police Station.
On 8th Police Constable called him to come to police station and since then kept him in police station foisted false case against him.
7.Heard arguments of both sides.
8.Now, the point for determination in this case is—
1.Whether the prosecution is able to prove the charges under Sections 417 and 376(2)(i) of I.P.C., beyond all reasonable doubt?
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2. Whether the prosecution is able to prove the charges under Sections 5(l)(ii) r/w 6 of Protection of Children from Sexual Offences Act against the accused, beyond all reasonable doubt?
9. POINTS 1 and 2:
These points are inter connected and hence discussed under one head.
10.The learned Additional Public Prosecutor vehemently argued that the prosecution is able to establish all the charges against the accused beyond all reasonable doubt. The evidence of P.W.2 victim girl is amply corroborated by mother and grand-mother of child victim and also by P.W.4 and medical evidence.
Simply because P.W.5 not supported the case of prosecution, it does not affect the case of prosecution as the other evidence clearly establish the case against the accused. Therefore, accused is liable to be convicted for the said charges.
11.On the other hand, the learned advocate for the accused vehemently argued that the prosecution miserably failed to prove any of the charges against the accused beyond reasonable doubt and the evidence of P.Ws.3 and 4 is interested and self serving in nature. There is lot of delay in reporting the incident and registration of First Information Report. The evidence of P.Ws.1 to 3 is self contradictory. The date of birth of P.W.2 is also not proved and the evidence on record reveals that she is major by the date of incident and Protection of Children from Sexual Offences Act has no application to the facts of the case. The evidence of mediators is not at all satisfactory as they are not independent witnesses and they are stock witnesses. The elders who mediated between parties not examined and no external injuries found on P.W.2 and the prosecution not able to establish any of the charges against the accused. Thus, prosecution is not able to establish essential ingredients of Sections 376(2)(i) and 417 of I.P.C., and Section 5(l)(ii) r/w 6 of Protection of Children from Sexual Offences Act, and accused is entitled to clean acquittal.
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12.The burden of proof is on the prosecution to prove all the charges for the offence under Sections 376(2)(i) and 417 of I.P.C., and Section 5(l)(ii) r/w 6 of
Protection of Children from Sexual Offences Act, beyond all reasonable doubt. The accused is presumed to be innocent till his guilt is established as per procedure in accordance with Law. The case of accused is total denial and that a false case is foisted against him.
13.Since it is the case of child, as per Section 33(7) of Protection of
Children from Sexual Offences Act, the name of the victim is not disclosed to maintain secrecy and confidentiality as required under law.
14.To prove the case of prosecution P.Ws.1 to 13 were examined. P.W.1
Ponnaganti Mamatha, mother of victim child, P.W.2 victim child, P.W.3 P. Krishna
Vijaya Bhanu, Grandmother of victim child, P.W.4 Bayi Ramanamma, Social
Worker, P.W.5 M. Srinivasa Rao, RMP Doctor, who said to have provided first aid when victim child detected as Pregnant, but he did not support the case of prosecution. P.W.6 is an elder to whom matter was referred. P.W.7 is mediator at the time of observation of scene. P.Ws.8 to 13 are official witnesses to corroborate the evidence of P.Ws.1 to 3. The Station House Officer, I Town Police
Station registered crime No.5/2016. Ex.P.11 is original First Information Report, based on the report of P.W.1 Ex.P.1. Ex.P.2 is Section 161 Cr.P.C., Statement of
P.W.5. Ex.P.3 is observation report dated:10.01.2016 prepared in the presence of
P.W.7 and another by Investigating Officer, but no incriminatory material found at the scene. Ex.P.5 is the potency certificate of the accused issued by P.W.9 Dr. Ch.
Sadhana stating that there is nothing to suggest that accused is incapable to perform the sexual act. Potency of accused is not in dispute in this case. Ex.P.12 is the Rough Sketch of scene of offence. Ex.P.10 photos and corresponding C.D., showing photos and video marked as Ex.P.9 while recording statement of P.Ws.1 to 3 marked through P.W.11 constable. Accused is related to P.Ws.1 to 3.
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15.P.W.8 P.V.S. Sesikala Devi, Teacher, who issued study and conduct certificate for victim child P.W.2 showing her date of birth as 06.07.1999. Nothing was elicited to impeach Ex.P.4 Study Certificate, except giving suggestion that it is created. Suggestion denied by her. She categorically stated that age of victim child as per their school records as 06.07.1999 as mentioned in Ex.P.4 as per which the victim child was a child as on the date of Ex.P.1 report. Hence, provisions of Prevention of Children from Sexual Offences Act are applicable to this case as it is a case of sexual exploitation complained by P.Ws.1 to 3 against the child. P.W.2 stated that her date of birth as 02.11.2000. Even as per that date also she is a minor child to attract the provisions of Prevention of Children from Sexual Offences Act. This discrepancy does not affect the case of prosecution, as P.W.2 may not be having correct knowledge of her date of birth which was furnished by her parents to the school. However, the fact remains that she was a child below 18 years of age as on the date of Ex.P.1.
16.P.W.1 Ponnaganti Mamatha, mother of victim child deposed that P.W.2 is her daughter. P.W.3 is her mother. Her daughter discontinued her studies after 7th class. She is living with her mother in Poolbaugh colony, Vizianagaram since 4 years along with her son and daughter as her husband deserted her. On 06.01.2016 her daughter P.W.2 suddenly collapsed in the house before lunch time and she was taken to Hospital by her along with her mother P.W.3 and after examining her doctor informed them that P.W.2 was three months pregnant.
When they questioned P.W.2 in the house, she informed them that accused is responsible for her pregnancy as he had sexual intercourse with her stating that he will marry her and she believed his words and he also threatened her not to reveal the same to others. Both of them had sexual intercourse in
Bath-room underneath the stairs of their house. When they questioned the accused and his mother, accused denied his relationship with her daughter P.W.2 : 8 :
and also about his responsibility for her pregnancy. Even before elders he denied their relationship. Later, they approached P.W.4 social worker, who is Communist
Party woman Leader and she also got tested P.W.2 and her pregnancy was confirmed. Then they reported the matter to the police. She gave Ex.P.1 report, which bears her signature. Her daughter was sent for medical examination by police after recording her statement. She also stated that accused is related to them and used to visit their house frequently, whose house is located near their house. P.W.1 was cross examined at length challenging their evidence. But, her evidence is consistent and reliable so far as P.W.2’s pregnancy that she was taken to hospital when she fell down before lunch. It is elicited from her cross examination that P.W.1’s marriage is a love marriage and later she separated from her husband. That is not much relevant for this case as question of sexual exploitation of P.W.2 is totally different incident. It is elicited in her cross examination that in her mother’s house her elder brother Tirupathi Rao is also residing and he left his wife and he was addicted to vices and her mother visits police station as a social worker. It is suggested to P.W.1 that accused is not responsible for pregnancy of her daughter, but her elder brother is responsible for the same which was categorically denied not only by P.W.1 but also P.W.2. She categorically stated that her elder brother is not of that type. Suggestion denied is no evidence. There is absolutely no evidence to show that her elder brother is responsible for pregnancy of the child P.W.2. She also stated in her cross examination that after the incident there was abortion to P.W.2 when she fell down from the steps. It is suggested to P.W.2 that this case is foisted against the accused by influencing the police by her and her mother as their family habituated in filing false cases but it was categorically denied by her. There is also no record to show that they filed false cases against others. The evidence of
P.W.1 totally corroborated by her mother, P.W.3 and P.W.4, Bayi Ramanamma in all material aspects that they were informed that P.W.2 was pregnant when she was got tested when she fell down in their house.
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17.P.W.3 P. Krishna Vijaya Bhanu and P.W.4 Bayi Ramanamma were cross examined at length, but nothing was elicited to impeach their evidence in any manner, except eliciting the fact that both of them used to go to Police Station as social workers for settlement of disputes. P.W.3 also corroborated the evidence of
P.W.1 about abortion of P.W.2 due to fall from steps after profuse bleeding. This evidence of P.Ws.1 and 3 can safely be accepted in this case, so also, P.W.4 Bayi
Ramanamma. Simply because P.W.4 not produced lab report about the pregnancy of P.W.2, her evidence cannot be doubted because it is not necessary for P.W.4 to keep that Lab Report throughout after giving report to police.
18.The evidence of P.W.2 child victim is very important in this case, who is aged 16 to 17 years by the time of Ex.P.1. She categorically stated that accused is responsible for her pregnancy as he had sexual intercourse with her saying that he wants to marry her and their marriage will be performed, if they had sexual intercourse and believing his words she did not oppose him. During
Dasara Festival days in the year 2015 accused came to their house in the absence of her family members and forcibly took her to the bathroom located under the steps where he closed her mouth forcibly and had sexual intercourse with her and also threatened her not to reveal the incident to others, otherwise he will not marry her, if she disclosed it. In similar way he had sexual intercourse with her in the same bath room and bathroom in up- stairs some times by visiting their house, when she was alone in the evening hours. On 06.01.2016 when she fell down, she was taken to Hospital by her mother and grand-mother where it was confirmed by Doctor that she was pregnant. When she was questioned by her mother and Grand-mother after returning to the house she narrated the incident. She categorically stated that brother of her mother is not responsible for her pregnancy. She was cross examined at length challenging the relationship with accused, but she stood : 10 :
the test of cross examination and explained all the facts in detail without much discrepancy. She is not able to say to which Hospital she was taken by her mother, but it is not much material to doubt her evidence. She said in her cross examination that she mentioned both bathrooms in the ground floor and upstairs while her statement was recorded under Section 164 of Cr.P.C., marked as Ex.P.13, but stated to Police only one bath room in ground floor. This is not serious lapse to doubt her evidence because she stated that the accused had sexual intercourse with her in bath room. Her evidence also cannot be doubted simply because she underwent abortion after the incident and on that ground the evidence of P.Ws.1 to 3 cannot be doubted, because that is a subsequent event and does not affect the evidence of P.Ws.1 to 3 to prove how her abortion took place after fall from the steps.
19.The evidence of P.Ws.1 to 3 about the pregnancy of P.W.2 is well corroborated by the medical evidence of Dr J. Sudha, P.W.10.
20.P.W.10 Dr. J. Sudha deposed that she examined P.W.2 on 10.01.2016 and on examination of abdomen, uterus she noticed uterus is found to be 14 to 16 weeks of height. Foetal parts found, no striae. External genitalia healthy. Hymen not in tact. Cervix, vagina healthy. On examination of urine pregnancy test result positive. Scan report also reveals single live fetus unstable lie, of 16 weeks of period of gestation. She collected specimens of swabs from vagina, cervix, pubic hair and nail clips, which were sent for analysis to RFSL. She issued Ex.P.6 preliminary certificate stating that victim might have habituated to sexual intercourse and after receiving RFSL Report Ex.P.7, she issued final opinion Ex.P.8 stating that the girl might have had the sexual intercourse and the victim is pregnant of 14 to 15 weeks period of gestation according to the clinical examination and ultra sound findings. In the cross examination she stated that she examined P.W.2, who was a minor in the presence of her mother with the : 11 :
help of lady ANM. Thus, the medical evidence of P.W.10 about pregnancy of P.W.2 proved beyond doubt that she was 14 to 15 weeks pregnant at the time of her examination due to sexual intercourse with accused as stated by P.W.2. Thus, the evidence of P.W.2 is well corroborated by P.Ws.1, 3, 4, 10 and also Investigating
Officers. The Sub Inspector, who registered First Information Report on the basis of Ex.P.1 marked as Ex.P.11 by P.W.12 V. Sreeramulu P.W.13 Sri A.V. Ramana, the
Sub Divisional Police Officer, who investigated the crime and his evidence is also amply corroborated about pregnancy of P.W.2 due to sexual intercourse of accused. The contention of the learned Advocate for accused that there is discrepancy and inconsistency in the statement recorded by police and the video recorded by police of witnesses P.Ws.1 to 3 is not at all tenable on verification of statements. Thus, prosecution is able to establish that the accused had sexual intercourse with P.W.2 child victim by inducing her on false pretext to marry her and made her pregnant due to repeated sexual intercourse with her.
21.The Learned Additional Public Prosecutor also relied on a decision of
Honourable Madras High Court in SUBRAHMANIAM Vs. THE STATE REPRESENTED
BY THE INSPECTOR OF POLICE, ALL WOMEN POLICE STATION,
GOBICHETTIPALAYAM in Crime No.4/2015 in Crl.Appeal No.269/2016, wherein it was held that-- “The protection of Children from Sexual Offences Act, 2012 does not contain any specific procedure to be followed by the Court to ascertain the age of a child victim. Section 34 of the said Act deals with the procedure in case of commission of offence by child and determination of age of Special Court. Sub- section 2 of the said provision states “if any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court, after specifying itself about the age of such person and it shall record in writing its reasons for such determination.” Except stating so, generally, there is no other guideline in the said provision as to how to determine the age of a child. Section 42-A of the said Act states “the provisions of this Act shall be in : 12 :
addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency”. From this provision, since it is clear that for determining the age of a child there is no procedure prescribed in the Act, the Court can very well follow the procedure as contemplated in the Juvenile Justice (Care and Protection of Children )Rules, 2007.
22.The evidence of P.W.1 child is quite trustworthy and reliable that she believed the words of accused, who continuously induced her in the name of love and she sincerely appears to have believed him and met the accused secretly in isolated places believing his words that he will marry her and if they did not do sexual intercourse, their marriage will not be performed. Throughout she was under the false impression that accused was seriously in love with her and hence she participated in sexual intercourse with him in bath rooms of house without the knowledge of others. This kind of meetings will naturally take place in isolated places. Therefore, it can safely be accepted without any doubt.
23. The Learned Advocate for accused relied on decisions reported in
TANGELLAMUDI @ GOLLAMUDI RAMESH AND OTHERS Versus STATE OF
ANDHRA PRADESH in 2008(1) A.L.D. (Crl.,) 612 (AP), wherein it was held that “there is enormous unexplained delay in submission of the complaint, registration of case, and forwarding the same to the Magistrate, and this delay is capable of being utilized to weave a story to implicate the accused.”
24.He also relied on another decision reported in KOONA
RAMAKRISHNA REDDY Vs. STATE OF A.P., in 2008(1) A.L.D. (Crl.,) 677 (AP), wherein it was held that “This time of three hours, between the occurrence and recording of statement in a given case, is sufficient for deliberations and discussions, particularly when the occurrence has the traces of faction rivalry. It is not as if that the incident in the present case has taken place late in the night, and the information could not reach the Police Station, due to lack of communication.” : 13 :
25.The facts of the above decisions are not applicable to this case, as in this case the delay is properly explained by P.Ws.1 to 3 as they referred the matter before elders and consulted well-wishers before going to police station as the matter relates to reputation of minor girl and the delay is not fatal in this case.
26.The learned Advocate for accused relied on decision reported in
BATHINA SOMBABU Versus STATE OF ANDHRA PRADESH, in 2008(1) A.L.D.
(Crl.,) 460 (AP), wherein it was held that “Unless a complaint is made to the
Panchayat, the panchayat elders will not call for a panchayat to find out the fact.
Without there being anything on record, it is rather difficult to understand as to how P.W.2 simply directed the accused to attend the Panchayat on the evening, nor there is any evidence to show that a Panchayat was slated to be conducted.” “P.W.8 the Doctor, who examined P.W.1 did not find any external injuries and stated that the origin of semen detected on item Nos.3 to 6, 9 and 11 could be determined and they are of human origin but their blood group could not be established and opined that there was chemical evidence suggestive of intercourse. From the above evidence, the most significant factor that has to be noticed is that P.W.8 the Doctor, did not find any external injuries in spite of definite identification of sexual intercourse between the prosecutrix and the accused.”
27.The learned Advocate for accused also relied on decision reported in
NARENDER KUMAR Versus STATE (NCT OF DELHI), in 2012(4) Supreme 59, wherein it was held that “However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence.” : 14 :
“Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. Therefore, must be proper legal evidence and material on record to record the conviction of the accused.”
28.The learned Advocate for accused also relied on decision reported in
STATE OF H.P., Versus HET RAM AND OTHERS, in 2015 O Supreme (HP) 42, wherein it was held that “When P.W.3 has deposed an improved and embellished version over his previous statement recorded in writing as such it erodes the truth of his testimony contradictions referred to hereinabove render the prosecution version qua the incident to be not proved beyond reasonable doubt.”
29.On the other hand the learned Additional Public Prosecutor relied on decision of Honourable Supreme Court of India in STATE OF U.P., Vs. NAUSHAD, in
Criminal Appeal No.1949/2013, wherein it was held that- “….Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix ‘against her consent’.
“…… In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the I.P.C., Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and her never aimed to marry her.” : 15 :
“……The trial Court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix.” “…….A woman’s body is not a man’s plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it.”
30.He also relied on another decision of Honourable Supreme Court of India in OM PRAKASH Vs. STATE OF U.P., DATED:22.05.2006 in CRL. APPEAL No. 629/2006, wherein it was held that-- “It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor, who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning.
The above decisions squarely apply to this case. The evidence of P.W.2 does not require any corroboration from any other evidence including the evidence of doctor, if it is found to be trustworthy in view of above decisions. Even if the doctor does not find signs of rape on the victim, it is not a ground to disbelieve sole testimony of the prosecutrix. In the normal course the Indian Women has tendency to conceal such offence which involves her prestige as well as prestige of her family. In this case, the accused had sexual intercourse with P.W.2 while she was a child below the age of 18 years and thus sexually exploited her by fraudulently obtaining her consent under misconception of fact and this act of : 16 :
accused amount to an offence as alleged consent is on the basis of misconception and accused raped the child prosecutrix. Even otherwise, consent of a child under eighteen years of age not valid defence for rape as per Section 375(6) of I.P.C.,
31.There is also presumption under Section 29 of The Protection of
Children from Sexual Offences act, 2012, which reads as follows :
Section 29: Presumption as to certain Offences: 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 abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
As per Section 29 the burden is also on the accused to prove that he did not commit crime against child P.W.2 as the prosecution was able to establish that accused committed rape on P.W.2 and sexually exploited her saying that he is in love with her till filing of the case, it is a continuing offence. The accused miserably failed to rebut the presumption in this case.
32.Therefore, on careful pondering of the entire evidence, I am of the opinion that the prosecution has proved the guilt of accused for the offence under sections 376(2)(i) and 417 of IPC and Section 5(l)(ii) read with 6 of the Protection of Children from Sexual Offences Act. The points are answered accordingly.
33. In the result, the accused is found guilty for the offence under
Sections 376(2)(i) and 417 of IPC and section 5(l)(ii) read with 6 of The
Protection of Children from Sexual Offences Act, and he is convicted under
Section 235 (2) of Cr.P.C., for the said offences.
Dictated to the Stenographer Gr.I, transcribed by her, corrected,
signed and pronounced by me in Open Court, this the 28th day of March, 2018.
Sd/- V.Venkateswara Rao
Special Judge for POCSO Act Cases
Cum-I Addl. Sessions Judge, Vizianagaram.
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34. When questioned with regard to the sentence, to be imposed against him accused pleaded mercy and further stated that “ I am not married. I have to look after my mother. I have no father” and pleaded mercy.
35.Taking into consideration the facts of the case that the accused raped P.W.2 child and sexually exploited her taking advantage of her innocence by inducing her and threatened her not to reveal the same to anybody, and so he is not entitled to any beneficial provisions of Probation of Offenders Act. This kind of offence has to be punished with some deterrent punishment. Since the offence under section 376(2)(i) of IPC and Section 5(l)(ii) read with 6 of Protection of
Children from Sexual Offences Act, are of the same nature and the accused being convicted for the offence under section 5(l)(ii) read with 6 of Protection of
Children from Sexual Offences Act, no separate sentence imposed on accused for the offence under section 376(2)(i) of IPC.,
36. Taking into consideration the facts of the case, the accused is sentenced to undergo Rigorous imprisonment for a period of 12 years and also to pay fine of Rs.50,000/- considering his financial condition and in default to undergo one year simple Imprisonment for the offence under Section 5(l)(ii) r/w 6 of Protection of Children from Sexual Offences Act. He is sentenced to undergo Rigorous imprisonment for a period of One (1) year for the offence under Section 417 of IPC and to pay a fine of Rs.25,000/- in default to suffer simple imprisonment for a period of three months.
37.It is further ordered that the sentences of imprisonment of accused imposed for the offences under Sections 417 of IPC, and section 5(l)(ii) read with 6 of the Protection of Children from Sexual offences Act, shall run concurrently.
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38.Accused is entitled to set off under section 428 of Cr.P.C., for the remand period, if any, already undergone by him. Total Fine amount of
Rs.75,000/-, if paid, shall be paid to the Victim child under Section 357(1) of
Cr.P.C., after expiry of appeal time. It is also recommended to District Legal
Services Authority under Section 357(A) of Cr.P.C., to award appropriate compensation to P.W.2, who is a victim of rape.
39.The unmarked non-valuable property, if any, shall be destroyed after expiry of appeal time. Accused is informed of his right to prefer appeal.
Dictated to the Stenographer Gr.I, transcribed by her, corrected,
signed and pronounced by me in Open Court, this the 28 th day of March, 2018.
Sd/- V.Venkateswara Rao
Special Judge for POCSO Act Cases
Cum-I Addl. Sessions Judge, Vizianagaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution:- For defence:-
P.W.1: Ponnaganti Mamatha. P.W.2: XXXXX. P.W.3: Pusapati Krishna Vijaya Bhanu. P.W.4: Bayi Ramanamma. P.W.5: Mookala Srinivasa Rao. P.W.6: Chitti Appa Rao. P.W.7: Chukka Easwara Rao. P.W.8: P.V.S. Sesikala Devi, Head Master of Z.P. High School. P.W.9: Dr. Ch. Sadhana, Civil Assistant Surgeon. P.W.10: Dr. J. Sudha, Civil Assistant Surgeon. P.W.11: Chintada Venkata Pydi Raju, Police Constable Videographer. P.W.12: V. Sriramulu, Retired Sub Inspector of Police. P.W.13: A.V. Ramana, Sub Divisional Police Officer.
DOCUMENTS MARKED
For Prosecution:-
Ex.P.1: Report given by P.W.1 . Ex.P.2: Section 161(3) Cr.P.C., statement of P.W.5. Ex.P.3: Observation Report dated:10.01.2016. Ex.P.4: Study and conduct certificate of P.W.2. Ex.P.5: Potency certificate dated:11.01.2016 of accused. Ex.P.6: Preliminary Certificate. Ex.P.7: RFSL Report.
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Ex.P.8: Final opinion of P.W.10. Ex.P.9: C.D., containing 53 photos. Ex.P.10: Four photos showing P.Ws.1 to 3. Ex.P.11: Original First Information Report in Cr.No.5/2016. Ex.P.12: Rough Sketch. Ex.P.13: Section 164 Cr.P.C., statement of P.W.2.
For defence: Nil
M.Os Marked
NIL Sd/- V.Venkateswara Rao
Special Judge for POCSO Act Cases
Cum-I Addl. Sessions Judge, Vizianagaram.
Copy submitted to the Hon’ble Registrar (Judicial),
Hon’ble High Court of Judicature at, Hyderabad (by way of C.D).
Copy communicated to :
1. The Addl. Public Prosecutor, Vizianagaram.
2. The Superintendent f Police, Vizianagaram.
3. The District Collector, Vizianagaram.
4. Copy to the accused
5. Copy to the Secretary, DLSA, Vizianagaram