Spl.SC. POCSO 11 of 2020
IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR EXPEDITIOUS TRIAL AND
DISPOSAL OF RAPE CASES AND CASES UNDER PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT AT WARANGAL
Wednesday, the 10th day of January, 2024
PRESENT: SRI Y.SATHYENDRA,
Chairman, Co-operative Tribunal, Warangal
FAC Special Sessions Judge for Expeditious Disposal of Rape Cases and Cases under the Protection of Children from Sexual Offences Act Warangal.
SPL. SESSIONS CASE POCSO CASE NO. 11 OF 2020
Crime No.88/2019 of PS., Mamnoor.
1.Name of the Complainant:The State of Telangana, through Assistant Commissioner of Police, Mamnoor.
2.Name of the Accused:Tejavath Hachu @ Ramesh, S/o. Setram, Age: 35years, Caste: Lambada, Occu : Coolie, N/o. Kasnathanda, h/o. Ammunagal village of Mahabunabad District, presently residing at Markandeyanagar@ Mangalammakunta,h/o. Thimmapuram(v)
3.Offence with which Charged:under Sections 450, 376(2) (n), 376(3) IPC Section 5(k) (l) r/w.6 of the Protection of Children from Sexual Offences Act.
4.Plea of the Accused:Pleaded not guilty
5.Finding of the Court:Found guilty
6.Sentence or Order: In the result, the accused is found guilty and convicted u/S.235(2) of Cr.P.C for the the offences punishable u/Ss.376(2) (l), (n), 376(3) and 450 IPC, 1/33
Spl.SC. POCSO 11 of 2020 secs.5(k) & (l) punishable u/S.6 of the POCSO Act. As discussed above this is case of gruesome offence of rape etc., on a MENTALLY RETARDED MINOR GIRL and lust of accused was like animal behaviour, without any humanity. This is not a fit case to apply the provisions of the Probation of Offenders Act and Sec.360 of Cr.P.C. Considering the gravity of the offences established by prosecution against accused, the Court imposes the punishment of rigorous imprisonment for a period of 20 (twenty years) for the offences u/Ss.376(2)
(l), (n), 376(3) and 450 IPC and shall pay a fine of Rs.10,000/- (Rs.Ten thousand only) on each count. Said imprisonment on each count shall run concurrently. Further accused is also punished with rigorous imprisonment of 20 (twenty years) on two counts under secs.5(k) & (l) punishable u/S.6 of the POCSO Act and shall pay a fine of Rs.10,000/- (Rs.Ten thousand only) on each count. Said imprisonment on each count shall run concurrently. Total amount of fine imposed is Rs.50,000/- (Rs.Fifty thousand only). Accused is further directed to pay compensation of Rs.5,00,000/- (Rs.Five lakhs only) to the victim girl. Entire fine amount of Rs.50,000/- and compensation amount of Rs.5,00,000/- shall be deposited in the form of FDR and the same amount with interest accrued shall be given to victim girl after the case is disposed finally. Accused-convict shall suffer default sentence of simple imprisonment for a period of six months if he fails to pay Rs.5,50,000/- (Rs.Five lakhs fifty thousands only) towards compensation and fine. All punishments for ALL THE the offences shall run concurrently. The remand period of accused from 13.11.2019 to 1.12.2020 (80) days and another period from 30.6.2023 till date. (205) days. Total 285 days shall be set off under Section 428 Cr.P.C. As the accused was convicted under offences in Secs.5(k) & (l) punishable u/S.6 of the POCSO Act for committing aggravated, penetrative sexual assault against victim-minor mentally retorted girl the Court is of the considered opinion that the girl has to be compensated for her sufferance and mental agony as such an amount of Rs.5,00,000/- is quantified as compensation amount payable by the Government (this amount is 2/33
Spl.SC. POCSO 11 of 2020
additional amount of compensation awarded from that of the amount
payable by accused) Therefore the Secretary, District Legal Services Authority, Warangal is directed for payment of said compensation amount of Rs.5,00,000/- (Rs.Five lakhs) to the victim girl at the earliest.
Sri Molumuri Ranjith,
7.Name of the Prosecution Counsel : Special Public Prosecutor
Smt M.Kavitha,
8.Name of the Defence Counsel: Legal Aid Counsel for the Accused.
This case is coming on this day for final disposal before me in the presence of learned Special Public Prosecutor and Ms. M. Kavitha, both sides counsels on record, upon hearing both sides and upon considering the material evidence available on record and having stood over for consideration till this day, this Court delivered the following:
:: J U D G M E N T ::
1) The Assistant Commissioner of Police, Mamnoor Division filed charge sheet in
Cr.No. 88 of 2019 of Police Station Mamnoor concluding his investigation saying that accused by name Tejavath Hatchu @ Ramesh committed offences punishable u/Ss.
450, 376(2)(n), 376(3) IPC, Sec.5 (k), (l) punishable under Sec. 6 of the POCSO Act against a mentally retarded girl, who was a minor.
CASE OF PROSECUTION:
2)According to the case of prosecution, that on 7.11.2019, mother of victim girl lodged a complaint saying that on the day before giving report in the afternoon time accused came to her house and raped minor-mentally retarded daughter and they came to know that on two prior occasions also, he raped her daughter. Upon said 3/33
Spl.SC. POCSO 11 of 2020 report, police shifted victim girl for medical examination, they examined victim girl with the help of person having special knowledge to deal with mentally retarded people and then examined parents of the victim girl. During investigation, it came into light at the time of incident, LW.4-Vijay and LW.5-V.Sai Charan saw accused coming outside from the house of PWs. 1 to 3 and that he touched feet of LW.6-
Yakambaram and expressed sorry. LW4-Vijay is also a mentally retarded person present at that time. LW.9-Basha Miya is a circumstantial witness who is local village elder.
3)Learned Magistrate recorded statements of victim girl, her parents and other three important witnesses. She is cited as a witness. Police arrested accused, completed investigation and filed charge sheet.
4)Initially Sri K.Ambareesha Rao, learned advocate filed memo of appearance to conduct defence of accused. On 4.2.2020, copies of all case documents were furnished to him u/Sec. 207 Cr.P.C.
5)At the stage of charges, accused absconded and NBW has been issued. That after execution of NBW, accused did not engage any advocate. Learned Legal Aid
Counsel, Smt M.Kavitha, advocate was appointed to conduct defence on the side of accused.
6)On 22.3.2021 charges u/Ss. 376(2) (l) and (n), 376(3), 450 IPC, sec. 5(k) and (l) punishable under Sec 6 of the POCSO Act were framed, read over and explained to 4/33
Spl.SC. POCSO 11 of 2020 accused in Telugu language. He understood the charges and pleaded not guilty.
7)During trial, the prosecution examined PWs.1 to 11 and marked Exs. P.1 to P.19.
8)Accused is still in jail after producing him on execution of NBW during trial proceedings.
9)On 27.12.2023, accused was examined under Sec. 313 Cr.P.C. He denied incriminating evidence adduced by prosecution. He reported no defence evidence.
10)Heard learned Special Public Prosecutor Sri Molumuri Ranjith and
SmtM.Kavitha, learned Legal Aid counsel on the side of accused.
11)Learned Special Public Prosecutor relied upon the following decisions of
the hon’ble Supreme Court and Division Bench of Hon’ble Delhi High Court as
follows:
1.Mohd. Alam v.State (NCT of Delhi) 2007 Cr.L.J. 803 (Del.) (D.B.) The following parameters and factors that need to be kept in mind, clearly emerge in cases of a rape of a girl child:
1.Such cases need to be dealt with sensitively and not like cases involving other penal offences. In other words, the whole approach of the courts must be quite different. (sensitized) 2.The traditional non-permissive bounds of Indian society, must be kept in mind while examining the evidence in cases involving sexual offences. Social factors play an important role in the nature and quality of available evidence.
3.The sole testimony of a prosecutrix is enough to convict a person accused of rape, if her testimony is free from blemish and implicitly reliable.
4.Such testimony does not need corroboration; but if there is some doubt about the implicit reliability of the testimony, then the Court may look for 5/33
Spl.SC. POCSO 11 of 2020 assurance to the acceptability of the testimony, short of its corroboration.
If the testimony of the prosecutrix is reliable and trust-worthy, then minor contradictions are not enough to throw out the evidence and other issues such as non-examination of an available witness, even the non-examination of a doctor or the non-production of the doctor’s report would not be fatal to the case of the prosecution.
In this case case on hand D.Vijay who is a mentally retorted person, who was present at the time when accused came to the house of victim-girl was not examined. But Sai Charan who questioned said D.Vijay about where he was going and coming to know that accused had sent him to get alcohol indicating to avoid his presence has been established through evidence of Sai Charan.
2. In Rajendra Datta Zarekar v.State of Goa, 2008 Cr.L.J 710 (SC) hon’ble Supreme Court held that Rape leaves in permanent scar and has a serious psychological impact on the victim and also her family mem,bers and, therefore,
no one would normally concoct a story of rape just to falsely implicate a
person.
The words of Hon’ble Supreme Court above are reply to the argument of learned defence counsel who submitted that accused was falsely implicated in this criminal case because of property dispute with PW.3 father of victim-girl.
Smt M.Kavitha, learned legal aid advocate submitted her arguments saying that there is delay in filing FIR, in this case. Further no Test Identification Parade was conducted to enable alleged victim girl to identify accused as culprit, who committed rape on her. Further she submitted that there is no supporting medical evidence also in this case on hand. Lastly she submitted PWs.1 to 3 are all interested witnesses to see that accused is punished as there was prior property dispute between PW.3 and accused that has to be considered as motive to implicate accused falsely in this criminal case. Any benefit of doubt that arises shall go in favour of accused and this is a case, where accused can get such benefit. Learned advocate Smt Kavitha further argued not only the evidence of prosecutrix but also the evidence of her parents cannot be believed. Their evidence is not supported by medical/ FSL report. In the light of enemity between parties in respect of land, it becomes an 6/33
Spl.SC. POCSO 11 of 2020 error in law if accused is found guilty and convicted in this case.
1)CASE LAW RELIED UPON BY LEARNED DEFENCE ADVOCATE:
1. Rajesh Patel vs.State of Jharkhand (2013) 2 Supreme Court Cases (Cri) 279
In this cited case, hon’ble Supreme Court held the case is one of consensual sex and the delay in lodging FIR was not properly explained. The prosecution was not consistent. Upon said reasons the hon’ble Supreme Court gave benefit of doubt to accused and set-a-side the conviction.
In the case on hand, victim-girl is mentally retarded. It is unreasonable to blame PW.2-mother that she went to attend works on 7.11.2019. By that time, she was not aware that accused raped her daughter. By that time, she knows only to the extent that accused proposed to marry her daughter. There was no delay in this case at all. She lodged complaint immediately after she had learnt accused raped her daughter.
2.Korra Reddy Mohan vs.State of Andhra Pradesh in 2019 2 ALD (Cri) 135
In this case the hon’ble High Court in our composite States held that every chain in the link has to be established by the prosecution in proving circumstantial evidence connecting accused to offence of murder.
This case is not based on purely circumstantial evidence. The direct witness who is victim of rape gave evidence about accused committing rape on her. There is supporting evidence of circumstantial witnesses by names Sai Charan and Yakambaram who saw accused coming to the house of victim-girl. The child witness by name Sai Charan deposed that door of the house of victim- girl was closed from inside and he heard cries of victim-girl from inside. Sai Charan also deposed one D.Vijay mentally retarded person told him that accused had sent him to get alcohol and it is inferred that accused had sent him to avoid his presence there.
3.Jose @ Pappachan vs. The Sub-Inspector of Police, Koyilandy and another
in 2017 1 ALT (Cri) (SC) 101
In this case, hon’ble Supreme Court held in a case based on circumstantial 7/33
Spl.SC. POCSO 11 of 2020 evidence where medical opinion was not establishing the case to be of homicidal hanging, that accused has to be acquitted.
In the present case on hand, the facts are completely different. No presumption u/S.106 of the Indian Evidence Act can attract here.
4.G.Peddaiah vs.State of A.P in 2019 2 ALT (Crl.) 155
In this case, hon’ble Supreme Court held that evidence which was untrustworthy, insufficient and of doubtful nature with surmises and conjectures formed basis for conviction.
In this case on hand, this Trial Court records a finding there is cogent, reliable and unfaltering evidence to prove offence of rape etc., Hence legal position in above cited case cannot be applied here.
5.Gargi vs.State of Haryana 2020 (1) ALD (Crl.) 48 (SC)
In this case hon’ble Supreme Court of India recorded findings saying that investigation was faulty. There are several shortcomings and loopholes in investigation. In that context, adverse inference against prosecution has been drawn.
In the present case on hand, learned advocate failed to point out any glaring mistake in the investigation. The findings in cited case cannot be applied and cannot be followed in this present case.
6.Santosh Prasad @ Santosh Kumar vs. The State of Bihar 2020 2 SCC (Crl.)
77
In this cited case, hon’ble Supreme Court found that there was enmity between parties in respect of land. There was no supporting witness. There was no medical or FSL report. The FIR was lodged with a delay. Above all, the evidence of prosecutrix was found not reliable and not trustworthy. Hence the
hon’ble Supreme Court set-a-side the conviction that was confirmed by
concerned High Court.
The facts and evidence in this case record are not similar as above.
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Spl.SC. POCSO 11 of 2020
12)Now the points for determination are :
1. Whether the charges of rape u/Ss.376(2) (l) & (n) and 376(3) IPC are established against accused beyond all reasonable doubt?
2. Whether the charge of criminal trespass u/ S.450 IPC was proved against accused, beyond all reasonable doubt?
3. Whether the charges u/S. 5(k) and (l) punishable under Sec 6 of the POCSO Act are proved against accused beyond all reasonable doubt?
POINTS No. 1 to 3:
EVIDENCE ADDUCED BY PROSECUTION:
13) PW1/ Victim deposed that accused, One Ramesh who is their neighbor came to their house during the afternoon time when she was alone in the house, when her parents went to attend coolie work. That accused removed his clothes and thereafter he removed her clothes. Thereafter accused laid down on her and he pressed her breast. Thereafter, he removed her pant and he removed her undergarment also. That accused inserted his penis in her vagina, due to which she got pain and she started crying. That she resisted accused and requested him to go away from there. That he left from there and accused came to her house on three occasions like this and he did the same with her three times, that accused threatened her not to inform anyone about the same. After her parents returned home, she cried and she informed her mother, about the same. Her mother lodged a complaint with the police and Police forwarded her for medical examination.
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14)PW1/ Victim further deposed that learned Magistrate recorded her statement
LW4/ Vijay is her maternal uncle. The accused gave money to Vijay asking him not to inform her mother, about his visiting her house. That Vijay was present outside, when accused came to her house and committed rape on her. Witness identified accused as Ramesh, who came to her house and committed rape on her. Police examined her and recorded her statement. The victim had shown with the help of the dolls that the accused laid on her and kept his private part in her private part by gestures.
15)PW2/ Victim’s mother deposed that PW.1 is her daughter. LW2 is her husband.
LW4 is her brother and LW5 is her nephew. The date of birth of her daughter/ PW1 is 03.07.2006. On 06.11 2019, as usual herself and her husband went for the coolie works, by leaving PW1 alone at their house. On 07.11.2019, she went to her niece/
Shirisha's home to enquire about her general health. Wherein, said Shirisha enquired with her, if PW1 had disclosed anything to her as victim was crying. Immediately, PW.2 went back to her home and enquired with her daughter/ PW1 as to what happened.
16)PW2 further deposed that PW1 revealed to her that one Ramesh @ Hachu (accused) asked her to marry. Immediately, she rushed to the house of accused and questioned him about the proposal made to her innocent daughter/ PW1. Wherein the accused denied the same and immediately, the said issue was placed before the village elder wherein, accused admitted said proposal and after the said panchayat, they went to attend their usual coolie work.
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17)PW2 further deposed that accused, LW4 Doma Vijay used to stay along with her daughter in their absence, that on 07.11.2019 as usual she went to her coolie work and her husband also attended coolie work. Her husband returned to home by 3.00 pm.
and saw her daughter/ PW1 crying stating stomach ache, immediately her husband called her/ PW2 through mobile phone and she came back to her home.
18)PW2 further deposed that upon coming back home, she sent her husband outside, after closing the door, she enquired PW1 as to what happened. PW1 stated that on 06.11.2019, a day before, accused came in between 3:00pm to 4:00pm and removed her (PW1) clothes, that accused also removed his clothes and made her lie on the bed and came over her. PW1 further told her that accused pressed her breast and urinating area. That PW2 again enquired with PW1, if that was the first time that accused has done this to her, that PW1 stated that even prior to this incident, accused has done the same thing two or three times earlier. Everyday, PW2 used to dress up her daughter/ PW1 and on that day, when she checked, she was wearing her underwear inside out. The entire episode was narrated by PWI to her with signs, gestures and words.
19)PW2 further deposed that thereafter, she told the same to her husband and they lodged a complaint in the Police station against accused on the same day. She had
dictated the contents to one known person and he scribed the same on her
instructions. Police examined and recorded her statement. Thereafter woman Police 11/33
Spl.SC. POCSO 11 of 2020 took herself and PW1 to the CKM Hospital. The entire medical examination of PW1 was done till 3.00 am on the next day.
20)PW2 further deposed that accused, LW4/ Vijay, LW5/ Sai Charan and L.W6/
Ekambaram also revealed to her that the victim girl also expressed her trauma before
Shirisha. She was told by LW5/ Sai Charan that accused had given money to LW4 Vijay on the pretext of buying alcohol to send him out of their house. By the time, LW4 came back, he observed that the doors of her house were closed from inside. PW2 identified accused as person, who raped her daughter. Police examined her and recorded her statement. PW1 was also examined by learned Magistrate and she accompanied her.
21)PW3/ Victim’s father deposed that PW1 is his daughter and PW2 is his wife. He knows LW4 to LW6. His daughter/ PW1 was aged then 14 years old at the time of incident. That he and his wife regularly used to work in the morning by leaving LW4-
D.Vijay with PW1 for her safety. On 07.11.2019, after coming back from work he noticed PW1 was crying. Immediately he informed the same to his wife, where his wife/ PW2 rushed to the house immediately within half an hour and enquired their daughter about she crying.
22)PW3 further deposed that when his wife/ PW2 enquired with PW1, she disclosed that on 06.11.2019, accused by removing the victim girl’s clothes committed sexual assault by laying her on a bed. By that time, LW4 Vijay and LW5 were at his 12/33
Spl.SC. POCSO 11 of 2020 house and that accused in order to avoid LW4 from the scene, gave some money to him for buying alcohol and the same was witnessed by LW5 Sai Charan, while LW4 Vijay was going towards alcohol shop. The witness/ PW3 also identified accused, as person who raped his daughter.
23)PW3 further deposed that one Shirisha, who is his niece in relation also enquired with PW2 about the incident, wherein PW1 disclosed about the sexual harassment meted out by accused against her. On 07.11.2019 at about 7.30 pm, they went to the Police station to lodge the complaint. His wife/ PW2 gave the complaint.
The victim/ PW1 was taken to CKM hospital on the same day at about 9.00 pm for medical check examination. Police examined him on the next day of lodging of complaint.
24)PW4/ D.Sai Charan deposed that PW2 is his maternal aunt. PW3 is husband of
PW2. PW1 is daughter of PWs2 and 3. Witness identified accused as Ramesh. On 06.11.2019, during afternoon hours, he saw his uncle, LW4/ Vijay (Peddabapu) was going and on being questioned, he told that Anna (accused) has given money to buy alcohol, for which he cautioned LW4 as to why, he has left PW1 alone in the house and he immediately took LW4 Vijay back to the house of PW1.
25)PW4 further deposed that when they reached the house of PW1, they could hear cries coming from the house and the door was closed. As he was scared with the situation, he immediately went to his house and informed his elder sister by name 13/33
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Shirisha. As his sister's health was not well, she informed about the incident to PW2 on the next day during morning hours and thereafter PW2 lodged a complaint against accused. Her uncle/ LW4 used to stay with PW1, when PW2 and 3 used to go to attend their work, as PW1 is not mentally well. Even his uncle/ LW4-Vijay is not mentally sound. That LW4- Vijay expressed everything to him with gestures.
26)PW5/ P.Yakambaram deposed that he knows PW1 to PW4 and LW4/ D.Vijay.
That he knows accused also. He attends electric work. That on 06.11.2019 at about 3.00 pm., while he was going through the house of PWs 1 to 3, he saw LW4/ Vijay,
PW1/ Victim girl and accused were sitting in front of house of PW3 and on the next day i.e., 07.11.2019 a galata took place in front of Basha Miya house between PW2 and accused, for the reason that when PWs 2 and 3 were not in the house, accused entered into their house by opening the doors and proposed to marry PW1, that PW2 also called him, after knowing the fact that he saw three of them sitting/ incident on 06.11.2019 and requested him to give evidence before Police and on 08.11.2019,
Police examined him and recorded his statement.
27)PW6/ K.Raj Kumari deposed that she is working as Special Educator in
Mallikamba Manovikasa Kendram for past 19 years. Their organization has deaf and dumb and intellectually disabled children. That on 07.11.2019, her organization received a requisition from PS.Mamnoor for presence of a special educator for recording of the statement of a mentally disabled victim girl/ PW1 and accordingly she was sent by her principal under the said requisition.
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28)PW6 further disclosed the name of the victim girl, that was tallied with the name of victim as per record. That on 08.11.2019, she went to Mangalammakunta and the victim girl along with her mother, Woman SI of Police and a videographer were present. That Woman SI of Police recorded the statement of victim girl as explained by her giving assistance. The witness deposed further that victim girl could speak but
the clarity of expression was not there. Hence the victim girl expressed
everything through words, supported by gestures. The entire process of recording of her statement was videographed. Police examined her and recorded her statement.
29)PW7/ Shaik Bashmiya deposed that he knows PW1 to PW3, he knows accused also. That on 07.11.2019 between 8.30 to 9.00 a.m, PW2 and accused by quarreling came to his house and he questioned accused about the reason of quarrel, for which accused answered adamantly that he has not done anything, but PW2 is creating an issue, that PW2 also disclosed before him that she went to the house of Shirisha who was suffering from ill-health. Subsequently, Shirisha asked PW2 about PW1 being crying on 06.11.2019. PW2 also informed him that PW1, her daughter revealed PW2 that accused participated in sex with her.
30)PW7 further deposed that PW2 also told him that PW1 told her that accused on 06.11.2019, when PWs 2 and 3 were not in the house, taking advantage of the same, accused entered into their house and asked PW1 to marry him and also removed her clothes. That accused participated in sexual intercourse forcibly thrice with PW1 and 15/33
Spl.SC. POCSO 11 of 2020 accordingly he suggested the PW2 to immediately approach concerned Police and report the same. Police examined him and recorded his statement after 4 or 5 days.
31) PW8/ D.Laxman deposed that he is resident of Mangalamma kunta, he knows
LW11/ Vanam Soundarya, he know PWs 1 to 3. That PWs 1 to 3 reside in the same locality. On 08.11.2019, he along with LW11 and some other people were present near the house of PWs 2 and 3. That he came to know that rape was committed on the daughter of PWs 2 and 3. Police observed the scene of offence and drawn a rough sketch in his presence and in the presence of LW11/ Vanam Soundarya.
32)PW9/ T.Sravani deposed that on 08.11.2019, she received a requisition from the
ACP, Narsampet to record the statement of victim/ a mentally disabled minor girl at her residence in the presence of her special instructor, Rajakumari/ PW6 and accordingly on the same day, she recorded the statement of the victim girl. The entire procedure was videographed. Accordingly she handed over the 161 Cr.PC. statement of the victim to LW19/ Investigation officer .
33)PW10/ S.Raju deposed that during that period one J.Vijayalaxmi (PW2) lodged a complaint(Ex.P1), upon which he registered the case in Crime No.88/ 2019 of
P.S.Mamnoor u/s. 450, 376(2)(n), 376(3) IPC, Section 5(k)(l) r/w. Section 6 of the POCSO
Act.
34)PW11/ Ch.R.V.Phaneendar deposed that in this case PW2/ J.Vijayalaxmi, mother of victim girl was complainant. Upon her report, PW10 issued FIR. PW11 took up 16/33
Spl.SC. POCSO 11 of 2020 investigation in this matter. PW1/ victim girl was examined by PW9/ Woman S.I. of
Police in the presence of supporting help of PW6/LW7/ K.Rajakumari who is having special skill and knowledge to understand the language of mentally retarded child. He examined PW2/mother and PW3/father and recorded their statements. He examined
LW4/ D.Vijay in the presence of supporting help of PW6/LW7/ K.Rajakumari, who is having special skill and knowledge to understand the language of mentally retarded person, PW4/LW5/D.Sai charan, PW5/LW6/PYakambaram and PW6/LW7/K. Rajakumari.
Later LW8/ D.Mallamma and PW7/LW9/ Shaik Bashamiya were examined by LW19/
C.Shyam Sunder, regular ACP, who conducted further investigation and filed charge sheet in this case.
35)PW11 further deposed that he secured presence of PW8/LW10/D Laxman and
LW11/V.Soundarya and in their presence he visited scene of offence prepared panchanama styled as Crime Details Form along with rough sketch.
36)PW11 further deposed that he gave a requisition dated: 07 11.2019 to the
Principal, Mallikamba Manovikasa Kendram, Center for Special children and adults to
depute a person, who can understand language of mentally retarded child or adult and accordingly, PW6 was deputed. That he also addressed another letter dated:
07.11.2019 to the ACP, CCS Warangal to depute a woman officer to record statement of victim girl. Accordingly PW9 was deputed. That he apprehended accused subjected him to medical examination, during his investigation.
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37)PW11 further deposed that on 13.11.2019, he arrested accused and produced
before concerned learned Judicial Officer for remand and further investigation was
conducted by LW19./ G.Shyamsunder, regular ACP Mamnoor division, who collected all necessary documents and filed charge sheet in this case saying that accused committed offences punishable u/s 450, 376(2)(n), 376(3) IPC, Section 5 (k) and (l) r/w.
Sec 6 of the POCSO Act.
FINDINGS:
38)In this case, statement of victim-girl was initially recorded by police and later by learned Magistrate. During trial, the victim gave evidence in this Court of Law. The victim was given two dolls of a boy and girl, so that she explained how accused lied on her, kept his private part in her private part by gestures. In the cross examination of
PW1, it was suggested that accused did not remove the clothes of victim girl and that she is deposing false. The victim girl denied the suggestion. She was questioned whether she hit accused at the time of incident. She deposed that she did not beat him or hit him, but she was crying at the time of incident.
39)It was suggested to her that she omitted to state before police that she informed her mother about the incident.
40)That victim-girl cried during incident was known as heard by the boy, Sdai
Charan (PW4) from outside. He went and informed Sireesha, his elder sister and also a cousin/ friend of victim-girl. She in turn told mother of victim girl that victim girl cried 18/33
Spl.SC. POCSO 11 of 2020 a day before and hence mother enquired victim-girl as to what happened. Immediately without any delay, she lodged complaint in this case before police.
41)Though victim is a mentally retarded girl, she gave her evidence on all material particulars of the incident of rape with perfection.
42)She identified accused as the person in her neighborhood who committed rape on her. It was suggested to her that he alone was shown to her and that is the reason why, PW1 identified him. She denied the same.
43)She also denied the suggestion that accused never came to her house, that he did not remove her clothes and he did not rape her. It was also suggested to her that her father and accused are having a dispute between them and that is the reason why a false case was foisted to implicate accused to take vengeance. All these suggestions were clearly denied by victim-girl. Her evidence was recorded with the help of Smt
Renuka, Special Educator, IERC, Wardhannapet by taking her assistance. Witness is capable of uttering some words and also she explained with gestures. That her evidence was properly recorded in this case. Initially one woman Sub-Inspector of
Police took assistance of one K. Rajakumari, Special Educator, Mallikamba Mano Vikasa
Kendram and recorded the statement of victim-girl with all minute details. Later Ms.
Rita Lal Chand, learned Woman Judicial Officer examined the victim-girl and recorded her statement and the same procedure was videographed. She recorded the words uttered by the girl with all details. The victim described accused/ culprit as her villager 19/33
Spl.SC. POCSO 11 of 2020 (Oori manishi). She took every care, while recording the statement of victim girl.
44)Smt C.Pavani, learned District Judge, at that time recorded evidence of victim- girl. After careful reading of statements of witnesses and victim at every stage. There are no improvements and no exaggerations. The alleged omission pointed out is also not a material omission in her statement. Only because victim girl informed her mother, the incident came into light. Her mother was only allowed, when learned
Magistrate recorded statement of victim girl. Nothing can be said to say PW1 gave
tutored version by her mother.
45)PWs. 2 & 3 are parents of victim girl. Her mother deposed in cross examination that victim girl can remember people if she sees him. That one person at police station scribed the report lodged by her, but she does not know his name. That she signed Ex.P.1. She studied upto IX Class. She cannot read English language. She can read Telugu language.
46)That victim girl, her daughter cannot speak with clarity but she communicates with words and gestures.
47)In the cross examination, PW2 was questioned that she did not lodge any report against accused, when he came to her house twice prior to the reported incident. That his visits twice and commission of rape by him earlier also twice came to the knowledge of mother of victim-girl only after 3rd incident only. Hence the question of not giving report on first two occasions cannot arise. PW.2 explained the same saying 20/33
Spl.SC. POCSO 11 of 2020 that she was not aware that fact at that time.
48)PW.2 deposed that her daughter/ victim-girl disclosed the incident to her during evening hours. PW.2 was not aware of incident of rape on her daughter prior to 7.11.2019. Immediately, after she came to know this, she lodged a report to police.
Before that, she approached one Basha Miya, one local elder and reported about the
incident. By that time, they know only to extent that accused offered victim girl to marry. Later they could know that he committed rape on victim girl three times.
49)Another omission was pointed out to PW.2 that she did not state before police and before learned Magistrate that her daughter complained stomach pain with signs and gestures and upon enquiry, the incident was revealed. These are natural flow of circumstances. We have to understand the mental capacity of victim-girl. She is not normal in her mental intellect to narrate, what all happened chronologically.
50)In further cross examination of PW.2, learned advocate Smt M.Kavitha on the side of accused made her admit that what all she narrated to police and deposed in her chief examination were not mentioned in her complaint. The complaint deals with a delicate information of commission of offence of rape on a mentally retarded minor girl by accused. At that stage, the Court cannot expect mother of victim girl to give every detail in her complaint. What she had known by that time that was complained of. As pewr settled law, a complaint initiating FIR cannot be treated as an encyclopedia. Only one omission and that is not a material omission, that was pointed 21/33
Spl.SC. POCSO 11 of 2020 out in this suggestion in the form of admission. Hence it is not helpful for defence.
51)PW.2 deposed that she goes to attend Coolie work from 10.00 A.M to 5.00 P.M.
In her absence, accused took advantage to commit offence of rape against her mentally retarded daughter/ victim-girl.
52)In the cross examination of PW.2 also, it was suggested to her that they have prior disputes with accused and that is the reason why this case was foisted against him. She denied the suggestion.
53)PW.3 is the father of victim girl. He is an illiterate. He admitted accused filed a criminal case against him and that was after lodging of a complaint in this present case. That case is still pending. Hence, it cannot be treated as motive to foist this case.
The case filed by accused is nothing but cross case, that is subsequent to this case with some ulterior motive.
54)PW.3 deposed that six months after filing of this case, accused filed criminal a case against him, his wife and his brother-in-law.
55)PW.3 denied the suggestion there were prior disputes between him and accused with respect to a land.
56)Strangely, it was suggested to PW.3 that as accused did not compromise in the criminal case filed by him, PW.3 and his family members foisted this present case. This is a former case and the case filed by accused is a latter case. How the question of foisting this case arises in connection with a latter case, filed by accused.
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57)In his cross examination, he clarified the report in Ex.P.1 was scribed by police, upon instructions given by PW.2 in his cross examination. PW3 clearly deposed that through Sai Charan-LW.5 and his brother-in-law Vijay Kumar/ LW.4, he learnt that incident took place around 3.00 P.M and her daughter was crying then.
58)On 7.11.2019, after 7.30 P.M, he came to know about sexual harassment by accused against his victim minor daughter-PW.1. He was questioned whether they enquired anything with accused before giving report in police station; that is not expected and not required also.
59)On one hand, it was suggested to PW.3 that he got disputes with accused because of which they foisted criminal case against him and on the other hand, he was suggested that only because of prior close acquaintance with accused, he could identify him.
60)PW.4 Sai Charan was a child/ minor at the time of incident and also at the time of giving evidence. But, he gave evidence to show close proximity that accused visited house of PW.1 victim-girl they were sitting there that he had sent Vijay to fetch alcohol. At that time, PW.1 was alone in the house. They heard cries of PW.1 from the house and the door was closed, that PW.1 was scared with the situation. Immediately he went to his house and informed his elder sister Sireesha, that LW.4-Vijay is not mentally sound. That LW4 expressed everything to PW4 with gestures.
61)PW.5-Yakambaram is also a witness, who had seen LW.4-Vijay, PW.1-victim girl 23/33
Spl.SC. POCSO 11 of 2020 and accused were sitting in front of her house and later on the next day he came to know that accused committed rape on PW.1 on the day before.
62)In the cross-examination of PWs. 4 & 5, circumstantial witnesses nothing useful could be elicited to help defence. PW.4 was questioned whether he keeps note of every person crossing their house. This is not a case, where he need to prove that he keeps note of every person crossing their house. This is a peculiar case, where he was present and he also enquired LW.4-Vijay who told him that accused sent him to get alcohol. He saw doors of house of PW.1 closed and heard cries of PW.1 inside.
63)In the cross-examination of PW.5, it was suggested that he belongs to same caste of P.W.2 and that is the reason why, he is giving supporting version deposing false. He denied the same. In the cross examination also, he ascertainedly deposed that he saw accused sitting infront of house of PW.2 and 3 at around 3.00 P.M.
64)PW.6 K.Raja Kumari, is Special Educator, who gave assistance to Woman Sub-
Inspector of Police, who recorded victim’s statement.
65)PW.7 Sk.Basha Miya deposed that on 7.11.2019, PW.2 disclosed to him that accused committed rape on her daughter/ victim, who is a mentally retarded girl. That on 6.11.2019, when PWs.2 & 3 were not at house, taking advantage of the same accused entered their house, asked PW.1 to marry him, removed her clothes and participated in the sex with her forcibly. That he committed rape on her minor daughter forcibly three times till then. He suggested PW.2 to approach police and 24/33
Spl.SC. POCSO 11 of 2020 lodge a report. He is a local Village Elder and nothing could be elicited in his cross examination against the prosecution’s case.
66)PW.8 is one of the witnesses who was present, when police visited scene of offence and prepared crime details form. Ex.P.2 was marked through him. He deposed that entire panchanama process was videographed from the beginning to the ending.
He resides in a nearby house to the scene of offence.
67)PW.9/ T.Srivani is Woman Sub-Inspector of Police, who took assistance of PW.6 and recorded statement of victim girl with all details. She deposed that entire procedure of recording statement of victim girl was videographed. PW.10-S.Raju, the then Inspector of Police, Police Station, Mamnoor registered the case and issued FIR.
68)PW.11/ Ch.RV.Phaninder is investigating officer in this case. He deposed that the offence of rape reported in this case took place on 6.11.2019 at 3.15 P.M and on the next day night, the report was lodged. The delay was explained by PW.2 in her statement given to police. In Ex.P.3, FIR it was mentioned there is no delay. The Court accepts there was no delay because complaint was lodged immediately after mother of victim-girl came to know about the commission of rape on her daughter.
69)PW.11 also deposed the same upon information about commission of rape on minor daughter came into light to her mother, immediately she lodged a report. He was questioned about Ex.P.16/ requisition given to Mallikamba Manovikasa Kendram to depute a Special Educator to assist Woman Sub-Inspector of Police to record 25/33
Spl.SC. POCSO 11 of 2020 statement of the victim girl. He denied the same. He was questioned about General
Diary entry about Ex. P.16 requisition. He deposed that he is not concerned person to make entries in General Diary. It was suggested to him that he did not record statement of PW.2. He deposed on her complaint and her statement only, he conducted investigation in this case.
70)He was questioned about non-mentioning of PW.7 in Ex.P.1 about his possibility as circumstantial witness. As per settled law, FIR is not encyclopedia of the case. In the course of investigation, things came to light. Hence the possibility of PW.7’s presence need not be doubted. It is not a creation by investigation agency. PW.7 is not a planted witness. Again he was questioned about non-mentioning of presence of PW.4-
Sai Charan and PW.5/ Yakambaram. The same analogy can be adopted. It was suggested to the investigating officer, all relatives of complaint were planted as witnesses to implicate accused person falsely. All the witnesses happened to be relatives and hence they had an occasion to go across house of PW.1 and know the incident to some extent about the visit of accused.
71)The victim’s date of birth as per the case of prosecution was denied. However her minority and mental health condition cannot be challenged in the light of medical certificate produced by police. The investigating officer was also questioned about cross criminal case filed by accused in Cr. No. 60 of 2020 of Police Station Mamnoor.
The present case on hand is a case in Cr.No. 88 of the year 2017, prior to alleged cross case. The investigating officer clearly explained said subsequent case in the year 26/33
Spl.SC. POCSO 11 of 2020 2020 cannot be referred as motive to implicate accused in this case.
72)In this case, the evidence of the victim-girl is natural and trust-worthy
inspiring the confidence of this Court. Further her evidence is supported by
medical evidence and circumstantial witnesses viz., PWs 4 and 5. Further, the evidence of PW2/ mother of victim-girl and PW7 Basha Miya, one local elder all go to show the flow of things, how the incident was revealed and disclosed. In this case, prosecution established the commission of rape and aggravated penetrative sexual assault by accused on the victim girl. There is no hesitation to this Court to believe the version of victim girl. Hence the ingredients of Sec.375 IPC are established beyond all reasonable doubt.
73)In this case, charges u/S.376 (2) (l), (n) and Sec.376 (3) IPC were framed.
According to said offences, Sec.376 (2) (l) and (n) IPC refer to commission of rape on a woman suffering from mental or physical disability and committing rape repeatedly on the same woman. The ingredients in said two offences are established by prosecution beyond all reasonable doubt. The prosecution filed copy of Mental Health Condition
Certificate of victim girl (Ex.P18) saying that she is suffering from permanent mental disabilty upto 90% and her date of birth as per copy of birth certificate obtained from
Mee Seva is 03.07.2006. The date of offence in this case took place on 6.11.2019 and two times prior to that date. By that time, victim was still a minor. The victim’s mental disability, her age and commission of rape by accused repeatedly on said girl; are all 27/33
Spl.SC. POCSO 11 of 2020 established.
74)According to Sec.376(3) IPC, rape on a woman under 16 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person and shall also be liable to fine and such fine shall be just and reasonable to meet medical expenses and rehabilitation of the victim. Any fine imposed under this section shall be paid to the victim. The age of victim-girl by the date of offence was less than 16 years of age and that is clearly established. Hence offence u/S. 376(3) IPC is also established by prosecution beyond all reasonable doubt.
75)Further charge under/ S.450 of IPC is commission of offence of house trespass in order to commit offence punishable with imprisonment for life. In this case, accused had sent one Vijay, who is also mentally challenged to get alcohol and entered the house of victim girl by closing the door inside. He was intending to commit offence of rape under IPC and also aggravated penetrative sexual assault under the POSCO Act which are punishable with imprisonment for life. Hence this offence of house trespass in order to commit offence punishable with imprisonment for life u/ S.450 IPC is also established.
76)Other charges under the POCSO Act that were framed are Section 5 (k) & (l) r/w.
Sec 6 of the POCSO Act. Sec. 5 (k) and (l) deal with the act of accused person taking advantage of child’s mental disability and committing aggravated penetrative sexual 28/33
Spl.SC. POCSO 11 of 2020 assault on the child; more than once or repeatedly. In this case, the aggravated penetrative sexual assault on victim girl was established beyond all reasonable doubt.
Her mental disability was also established. She deposed that two times prior to incident reported in this complaint, accused committed said offence, that means repeatedly. Hence offences u/ Sec.5 (k) & (l) are established that are punishable under
Sec.6 of the Act.
77)In the result, accused is convicted under Sec 235(2) CrPC finding accused guilty for the offences under Sec 376 (2) (l), (n), Sec 376 (3) and Sec 450 IPC, Sec 5 (k) and (l) punishable under Sec 6 of the POCSO Act.
(Dictated to the Stenographer, after transcription, corrected and pronounced by me in the open Court on this the 10th day of January, 2024).
Sd/-.Sri Y.Sathyendra,
FAC Special Sessions Judge for Expeditious Disposal of Rape Cases and Cases under the Protection of Children from Sexual Offences Act, Warangal
Heard accused on quantum of sentence. He submitted that he is sole bread winner of his family comprising of wife, two children and aged mother. They will starve if he is sent to jail.
As discussed above, this is case of gruesome offence of rape etc., on a
MENTALLY RETARDED MINOR GIRL and lust of accused was like animal behaviour, without any humanity.
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This is not a fit case to apply the provisions of the Probation of Offenders Act and Sec.360 of Cr.P.C.
Considering the gravity of the offences established by prosecution against accused, the Court imposes the punishment of rigorous imprisonment for a period of 20 (twenty years) for the offences u/Ss.376(2) (l), (n), 376(3) and 450 IPC and shall pay a fine of Rs.10,000/- (Rs.Ten thousand only) on each count. Said imprisonment on each count shall run concurrently.
Further accused is also punished with rigorous imprisonment of 20 (twenty years) on two counts under secs.5(k) & (l) punishable u/S.6 of the POCSO Act and shall pay a fine of Rs.10,000/- (Rs.Ten thousand only) on each count. Said imprisonment on each count shall run concurrently.
Total amount of fine imposed is Rs.50,000/- (Rs.Fifty thousand only). Accused is further directed to pay compensation of Rs.5,00,000/- (Rs.Five lakhs only) to the victim girl. Entire fine amount of Rs.50,000/- and compensation amount of
Rs.5,00,000/- shall be deposited in the form of FDR and the same amount with interest accrued shall be given to victim girl. after the case is disposed finally.
Accused-convict shall suffer default sentence of simple imprisonment for a period of six months, if he fails to pay Rs.5,50,000/- (Rs.Five lakhs fifty thousands only) towards compensation and fine.
All punishments for ALL THE the offences shall run concurrently.
The remand period of accused from 13.11.2019 to 1.12.2020 (80) days and another 30/33
Spl.SC. POCSO 11 of 2020 period from 30.6.2023 till date. (205) days, total 285 days shall be set off under
Section 428 Cr.P.C.
As the accused was convicted under offences in Secs.5(k) & (l) punishable u/S.6 of the
POCSO Act for committing aggravated penetrative sexual assault against victim- minor mentally retarded girl, the Court is of the considered opinion that the girl has to be compensated for her sufferance and mental agony as such an amount of
Rs.5,00,000/- is quantified as compensation amount payable by the Government (this amount is additional amount of compensation awarded from that of the amount payable by accused) Therefore the Secretary, District Legal Services Authority,
Warangal is directed for payment of said compensation amount of Rs.5,00,000/- (Rs.Five lakhs) to the victim girl at the earliest.
(Dictated to the Stenographer, after transcription, corrected and pronounced by me in the open Court on this the 10th day of January, 2024).
Sd/-.Sri Y.Sathyendra,
FAC Special Sessions Judge for Expeditious Disposal of Rape Cases and Cases under the Protection of Children from Sexual Offences Act, Warangal
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION: FOR DEFENCE: --- NIL –
PW.1:Victim girl PW.2:Mother of victim-girl PW.3:Father of victim-girl 31/33
Spl.SC. POCSO 11 of 2020
PW.4:D.Sai Charan/Eye witness PW.5:P.Yakambaram/Circumstantial witness PW.6:K.Rajakumari/Spl.Educator PW.7:Shaik Bashmiya/Circumstantial witness PW.8:Dandu Laxman/Panch for Crime Details Form PW.9:T.Sravani/Woman S.I PW.10:S.Raju/Inspector of Police PW.11:Ch.RV.Phanindhar/Asst.Commissioner of Police.
EXHIBITS MARKED
FOR PROSECUTION:
Ex.P.1 : Complaint dated 07.11.2019 lodged by mother of victim-girl Ex.P.2: Crime Details form dated 8.11.2019 alongwith rough sketch Ex.P.3 : F.I.R. Ex.P.4 : Statement of mother of victim u/S.164 Cr.P.C Ex.P.5: Statement of father of victim u/S.164 Cr.P.C Ex.P.6: Statement of victim girl u/S.164 Cr.P.C Ex.P.7: Statement of LW.4/Vijay, Special Person (mentally retarded u/S.164 Cr.P.C) (He was not examined as a witness but he is important circumstantial witness, however PW.4 filled up the gap as to non-examination of this witness.) Ex.P.8: Statement of Sai Charan u/S.164 Cr.P.C Ex.P.9: Statement of Yakambaram u/S.164 Cr.P.C Ex.P.10: Requisition dt.7.11.2019 to the Medical Officer, CKM Maternity Hospital, Warangal to conduct medical examination of victim-girl. Ex.P.11: Provisional opinion of MLC of victim girl dt.8.11.2019 collecting vaginal swabs etc., and sending them to RFSL, for analysis and report. Ex.P.12 : Covering Letter by Assistant Professor, Government Maternity Hospital sending the vaginal swabs etc., to RFSL for analysis. Ex.P.13: Potency certificate dated 23.11.2019 of accused Ex.P.14 : Report of TFSL dated20.11.2019 in(two) pages. Ex.P.15 : Final opinion report dated.21.11.2019 saying that there is nothing suggestive to say that victim-girl did not participate in sexual intercourse. Ex.P.16: Letter dated 7.11.2019 to depute one female person having 32/33
Spl.SC. POCSO 11 of 2020 knowledge to understand the language and communication of a mentally retarded person to assist Woman Police Officer to record statement of victim-girl. Ex.P.17: Another requisition dated 7.11.2019 to Woman Sub-Inspector of Police to record statement of victim-girl who is mentally challenged. Ex.P.18: Photo copy of victim girls’ certificate showing that her mental disability is severe in nature to the extent of 95%. Ex.P.19: Two photographs alongwith two CDs
FOR DEFENCE:--NIL –
MATERIAL OBJECTS MARKED – NIL –
Sd/-.Sri Y.Sathyendra,
FAC Special Sessions Judge for Expeditious Disposal of Rape Cases and Cases under the Protection of Children from Sexual Offences Act, Warangal 33/33