S.C.No.748 of 2017 1 of 9 Date: 19.04.2022
IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER POCSO
ACT-CUM-IX ADDITIONAL DISTRICT & SESSIONS JUDGE (FTC), RANGA
REDDY DISTRICT AT L.B. NAGAR.
Tuesday, the 19thday of April, 2022
Present: Smt.Y. Padma, Special Sessions Judge for Trial of cases under POCSO Act-cum-IX Addl. District & Sessions
Judge (FTC), Ranga Reddy District at L.B. Nagar.
Spl. Sessions Case No.748 of 2017
(Cr.No.47 of 2016 of P.S Chevella)
1 Name of the complainantThe State of Telangana through the Assistant Commissioner of Police, Chevella 2 Name of the accusedAnkoori Shivaiah @ Shiva S/o. Late Balaswamy, aged 20 years, Occ:Labour, Caste: SC (Madiga), R/o. Huts near Govt. Junior Collage at Chevella Village and Mandal, R.R District. 3 Offences complained ofUnder Sections 366A, 376(2)(n) of IPC and Sec. 5(l) read with 6 of POCSO Act 4 Crime No. &Name of the 47 of 2016 of P.S Chevella PS 5 Plea of the accusedPleaded not guilty. 6 Finding of the CourtFound not guilty. 7 Sentence or orderIn the result, the accused is found not guilty of the offences under Sections 366A, 376(2)
(n) of Indian Penal Code and Sec. 5(l) read with 6 of POCSO Act and he is accordingly acquitted U/Sec.235 (1) Cr.P.C for the above charges. MO.1 shall be return to accused after appeal time.
This case is coming before me for final hearing in the presence of Sri.C. Ramu Addl Public Prosecutor for the State and of Sri. Satyanarayana Advocate for the accused and upon hearing both sides and perusing the material on record, this Court delivered the following:
J U D G M E N T:: ::
Assistant Commissioner of Police, Chevella filed a Charge sheet in Cr.No.47 of 2016 of P.S. Chevella against above named accused for the offence under Secs.
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S.C.No.748 of 2017 2 of 9 Date: 19.04.2022 366A, 376(2)(n) of Indian Penal Code and Sec. 5(l) read with 6 of POCSO Act.
1.It is the case of the prosecution, as set up in the charge sheet is that on 4-2-2017 at 13 hours LW1 defacto complainant (name with held) approached SHO
Chevella P.S and lodged a complaint stating that LW5 victim is his daughter and aged about 14 years and prosecuting 9th standard in Government High School. On 01-02-2017 victim went to school but did not return till night and searched for her but not traced .
2.Basing on the said complaint, LW.18 Inspector of Police registered above crime for the above offence as Girl missing, investigated into it and traced the victim and altered the section of law and arrested the accused, after completion of investigation he filed charge sheet for the offence under Sections 366A, 376(2)(n) of
Indian Penal Code and Sec. 5(l) read with 6 of POCSO Act against the accused.
3.The Hon’ble Metropolitan Sessions Judge, Cyberabad, took cognizance for the offence under Sections 366A, 376(2)(n) of IPC and Sec. 5(l) read with 6 of POCSO Act against the accused.
4.On appearance of accused, case copies were furnished to him
U/Sec.207 of Cr.P.C.
5.Heard on charges and charges were framed against the accused for the offences under sections 366A, 376(2)(n) of Indian Penal Code and Sec. 5(l) read with 6 of POCSO Act and explained to him in Telugu, he pleaded not guilty & claimed to be tried.
6.By virtue of order Dt. 27-11-2021 in vide Dis.No.4576/2021
Hon’ble Prl. District & Sessions Judge, R.R.District made over this case to this Court,
for trial and disposal.
7.During course of trial, on behalf of the prosecution, PWs.1 to 13
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S.C.No.748 of 2017 3 of 9 Date: 19.04.2022 were examined and Ex.P1 to P22 and MO.1 were marked and learned Public Prosecutor has given up LWs.3, 4 and 7 circumstantial witnesses, LW9, 12, 13 and 14 mediators for the scene of offence panchanama and seizure panchanama, no purpose would be served by examining them, since material witnesses not supported the case of the prosecution.
8.On completion of examination of witnesses on behalf of prosecution, accused was examined U/Sec.313 Cr.P.C and explained all the incriminating material available against him, he denied the same and reported no defence evidence.
9.Heard.
10.Now the point for determination is:
1. W hether the prosecution could able to prove that PW7 victim was subjected to sexual assault.
2. Whether the prosecution could able to prove the guilty of the accused
for the charges under sections 366A, 376(2)(n) of Indian Penal Code
and Sec. 5(l) read with 6 of POCSO Act.
Point No.1 :
In order to prove the guilt of the accused, prosecution relied on the oral evidence of Pws.1 to 13 and Ex.P1 to P22 & MO.1.
11. The learned Spl. Additional Public Prosecutor argued that, accused having knowledge that victim is a minor and a child within the definition of Section 2(d) of POCSO Act, kidnapped her and had inter course with her repeatedly and oral evidence of PWs.1 to 13 and Ex.P1 to P22 are sufficient to connect the accused with the alleged charges.
12.On the other hand learned Counsel for accused argued that PW7
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S.C.No.748 of 2017 4 of 9 Date: 19.04.2022 who is victim and competent witness did not depose that she was subjected to sexual assault and accused kidnapped her, therefore, prosecution failed to prove that victim was subjected to sexual assault.
13.In the case on hand, in order to establish that PW7 is a child and she was subjected to sexual assault, Prosecution relied on the oral evidence of PW1, PW2 ,
PW7 and PW8 and Ex.P1, & Ex.P15 to P17.
14.On perusal of the oral evidence of PWs 1 and 2, they are none other than the parents of the victim, when they are examined before this Court they have not deposed anything that accused kidnapped the victim and molested her.
15.In the case on had, PW7 is the victim and she is competent witness to explain whether she was subjected to sexual assault or not and whether accused molested her or not. Whereas, when PW7 was examined before this Court , she has not spell out anything against the accused. Moreover, PW7 deposed that she does not know the accused and when she was studying 9th class she went to maternal grand mother’s house, subsequently, her material uncle brought her to house. PW7 no where stated that accused kidnapped her and molested her.
16.Therefore, the oral evidence of PWs1, 2 & 7 is not sufficient to prove that accused kidnapped her and committed sexual assault. As per victim no offence is committed against her.
17.On perusal of the oral evidence of PW8 who is Medical Officer and who examined the victim on 10-02-2017 as per prosecution, she deposed that she examined the victim on that day and she does not found any external or internal injuries.
Even as per FSL report no semen and spermatozoa were detected on material objects seized by her and finally she opined that there is no recent sexual intercourse, however
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S.C.No.748 of 2017 5 of 9 Date: 19.04.2022 previous intercourse can not be ruled out.
18.It is settled law that medical evidence is not a substantive piece of evidence. Further more final opinion of PW8 about previous intercourse is not supported by any scientific material. When PW7 who is victim herself deposed that she was not subjected to sexual assault mere opinion of PW8 and Ex.P15 to P17 cannot be considered, since it if a formal opinion. At present there is no material on record to prove that PW7 victim was subjected to any offence or sexual assault in the hands of the accused. Since prosecution prima facie failed to prove that Pw7 was subjected to sexual assault, the question of drawing any presumption against the accused and he disproving the same does not arise. Therefore, this point is answered accordingly.
Point No.2:
19.Now this Court has to see whether prosecution could able to prove the charges under Section 366A, 376(2)(n) of Indian Penal Code and Sec. 5(l) read with 6 of POCSO Act against the accused.
20.The learned PP argued that accused having knowledge that PW7 is a victim without consent of PWs1 and 2 who are the parents of victim took her to Kerala and molested her repeatedly. On the other hand, the learned defence counsel argued that there is no material on record to prove that accused has kidnapped the victim and molested her
21. In the case on had Pws 1 and 2 are parents and when they are examined before this Court, they deposed that in the year 2017 victim was studying in
Government school and victim was found missing, accused took her to Kerala and thereafter they went to Kerala along with the uncle of the accused and brought the accused and victim from Kerala. As seen from the record it is not the case of
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S.C.No.748 of 2017 6 of 9 Date: 19.04.2022 prosecution that accused took the victim to Kerala and victim was found along with accused in Kerala and they brought the victim by the car. Furthermore, the oral evidence of Pws 1 and 2 is contrary to the case of prosecution. As per the prosecution, accused kidnapped the victim and thereafter, accused after knowing that a criminal complaint was filed he brought the victim and dropped her, in the village and thereafter victim went to her parents house. Subsequently, police arrested the accused at his residence.
22. During the cross examination of Pw1 and 2, they admitted that victim has not informed that accused took away her to Kerala and they have not directly witnessed the accused while taking away the victim. Further more it is not the case of the prosecution that accused induced the victim and took her to Kerala. They have not deposed that accused committed rape on the victim repeatedly. Oral testimony of PW1 and PW2 is with full of material omissions and contradictions and contrary to the case of the prosecution, therefore it should be kept aside from consideration.
23.PW3 is Head Master of the school in which victim studying and her evidence and Ex.P2 is sufficient and establishing that victim is a child by the year 2017.
Mere establishing that victim is a child is not sufficient, the prosecution must establish that accused kidnapped the victim and molested her. Therefore, the oral evidence of
PW3 and Ex.P2 is not sufficient to connect the accused with the alleged charges.
24.PW4 & PW5 are the mediators for the panchanamas conducted by the police but their oral testimony and Ex.P1 to P6 are not sufficient to connect the accused with the alleged charges. Their evidence is only relevant to prove that police visited some place at which alleged offence took place and to prove the nature and physical features of the said place but it is not sufficient to prove that accused himself committed said offence.
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S.C.No.748 of 2017 7 of 9 Date: 19.04.2022
25.PW8 is the Doctor who examined the victim and this Court already in the Point No.1 held that her evidence is not sufficient to connect the accused with the alleged charges. PW9 is the doctor who examined the accused and issued report under
Ex.P18 stating that accused can perform sexual act. Mere proof that accused is capable of performing sexual act is not sufficient to connect the accused and prosecution must prove that he committed sexual assault against the victim, whereas prosecution failed to prove the same, therefore the oral testimony of PW9 and Ex.P18 is not sufficient to prove the charges leveled against the accused.
26.PW10 is the mediator and even he has not supported the case of prosecution and his evidence is not sufficient to prove the case of the prosecution.
27.PW11 is the mediator for the alleged confession made by the accused to the police. It is settled law that confession made by accused to police is not admissible and cannot be proved against the accused, unless some material is seized basing on said confession. Admittedly in the case on hand PW11 did not depose anything about any materiel seized by Police from accused basing on his confession.
Therefore oral testimony of PW11 and Ex.P20 must be kept aside from consideration to connect the accused with alleged charges.
28.in the case on hand PW12 and PW13 are the investigating officers and they corroborated the case of the prosecution, when PW7 victim herself not deposed anything against the accused and when she deposed that she is not subjected to any kind of assault it is not proper to rest on the oral testimony of Investigating Officers to connect the accused with alleged charges. In the case on hand at present there is no material on record to prove that accused either kidnapped the victim with a intention to force her for sexual intercourse or committed sexual assault on her repeatedly and no
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S.C.No.748 of 2017 8 of 9 Date: 19.04.2022 case is made out against the accused. Therefore, the accused is entitled for acquittal for the alleged charges.
29.In the case on hand, prima facie prosecution failed to prove that
Pw7 victim was subjected to sexual assault or she is a victim of any offence. Further more, as per PW7 no offence is committed against her. Therefore, question of granting any compensation to PW7 does not arise.
30.In case on hand, it is not the case of prosecution that accused used the mobile phone to induce the victim and committed some offence and further more, prosecution failed to prove that accused committed some offence. Therefore, MO1 shall be return to the accused.
In the result, the accused is found not guilty of the offences under Sections 366A, 376(2)(n) of Indian Penal Code and Sec. 5(l) read with 6 of POCSO Act and he is accordingly acquitted U/Sec.235 (1) Cr.P.C for the above charges. The bail bond of the accused shall be in force for about Six months as under Sec.437 A of Cr.P.C . M.O.
No.1 shall be return to accused after appeal time.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by
me in the open Court, on this the 19th day of April , 2022.
Special Judge for Trial of cases under
POCSO Act-cum-IX Addl.Dist., & Sessions
Judge (FTC), Ranga Reddy District at L.B. Nagar.
APPENDIX OF EVIDENCE
(Witnesses examined) For the prosecution: PW1: (Father of Victim) PW2: (Mother of Victim) PW3: Raziya Sultana
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S.C.No.748 of 2017 9 of 9 Date: 19.04.2022
PW4: D. Ananthaiah PW5: B. Narsimulu PW6: G. Yellaiah PW7: (Victim) PW8: Dr. A. Sunitha PW9: Dr. Shiva Balaji Reddy PW10: Y. Ramulu PW11: K. Narsimhulu PW12: B. Hanumanth Reddy PW13: Ch. Srutha Keerthi
For the defence: -None-
EXHIBITS MARKED
For the prosecution: Ex.P1: Complaint Ex.P2: Bonafide certificate of the victim Ex.P3 & P4: Scene of offence panchanama and rough sketch Ex.P5 & P6: Signatures of Pw5 on the scene of offence panchanama Ex.P7 & P8: Signatures of Pw6 on the scene of offence panchanama Ex.P9 to P14: Signatures of Pw7 on Sec.164 Cr.P.C statement Ex.P15: Preliminary Examination of PW7 issued by Pw8 Ex.P16: FSL Ex.P17: Final opinion given by PW8 Ex.P18: Potency test examination certificate given by Pw9 Ex.P19: Sec.161 Cr.P.C statement of Pw10 Ex.P20: Sec.161 Cr.P.C statement of Pw11 Ex.P21: FIR Ex.P22: Section alteration memo
For the defence: -NIL-
MATERIAL OBJECTS MARKED
MO1: Mobile phone
Special Judge for Trial of cases under
POCSO Act-cum-IX Addl.Dist., & Sessions
Judge (FTC), Ranga Reddy District at L.B. Nagar.
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