THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL No.15 of 2019
JUDGMENT:
Aggrieved by the Judgment dated 13.04.2018 passed by the learned I Additional Metropolitan Sessions Judge-cum-Special Judge for trial of Cases under Protection of Children from Sexual Offences Act, Hyderabad in S.C.P.C.S.No.124 of 2016, the present Criminal Appeal is filed.
2. Heard Sri C. Sharan Reddy, learned counsel appearing on behalf of the appellant as well as Smt. Shalini Sakena, learned Assistant Public Prosecutor appearing on behalf of the respondent.
3. The trial Court convicted the appellant/accused for the offence punishable under Sections 509 and 448 of the Indian Penal Code, 1860 (for short 'the IPC') and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') and sentenced him to undergo three (3) years rigorous imprisonment and to pay fine of Rs.2,000/-, in default of payment of fine amount, he has to undergo simple imprisonment for a period of three (3) months; further, sentenced to undergo simple imprisonment for a period of one (1) year and to pay a fine of Rs.500/- for the offence punishable under Section 509 of IPC, in default of payment of fine amount, further undergo simple imprisonment for a period of one (1) month; and further sentenced 2 SKS,J Crl.A.No.15 of 2019 to undergo simple imprisonment for a period of one (1) year and to pay a fine of Rs.500/- for the offence punishable under Section 448 of IPC, in default of payment of fine amount, further undergo simple imprisonment for a period of one (1) month.
4. Aggrieved by the said conviction and sentence, the present appeal is preferred by the appellant.
5. The facts of the case as per the prosecution are that on 20.05.2016, P.W.1 lodged a complaint with the Police Falaknuma stating that on 19.05.2016 at about 4:30 pm to 5:00 pm, when his daughter, aged about 3 ½ years, and sister's son by name Md. Shageel, aged about 10 years, were playing in his house. The accused, who is aged about 28 years, went to his house and called Pw.1's daughter and son in law to him, opened his pant and by showing his penis to his daughter, asked her to keep his penis in her mouth for which he will give five rupees to her but she ran away from the house. The accused also asked his son-in-law to open his pant but he rejected and the accused threatened his nephew. P.W.2 told the incident to all her friends and told to the neighboring people, who went to his house. By seeing all the people, the accused ran away. When P.W.1 went to house at 11:30 pm, his son in law told everything to him. When he enquired with his victim daughter, she also revealed the same to him. Basing on the said complaint, the police registered a Crime, took up 3 SKS,J Crl.A.No.15 of 2019 investigation and recorded the statements of P.Ws.1 to 4 and apprehended the accused and the accused confessed the commission of offence and he was arrested and produced before the Court. Later, charge sheet was filed for the offence punishable under Sections 448 and 509 of the IPC and Section 11 read with 12 of the POCSO Act.
6. To prove their case, the prosecution examined P.Ws.1 to 4 and got marked Exs.P1 to P3. On behalf of the accused Exs.D1 to D3 were marked. No oral evidence was adduced but basing on the evidence on record, the trial Court convicted the accused as stated supra.
7. Learned counsel for the appellant would submit that the trial Court erred in convicting the appellant for the offences punishable under Section 12 of the POCSO Act and Sections 509 and 448 of the IPC. by relying on the testimonies of P.Ws.1 and 2. The trial Court ought to have seen that P.W.2 is a child witness and her evidence cannot be taken into consideration to convict the accused. He also submitted that P.W.2 has named different persons in her statement recorded under Section 164 of Cr.P.C., and Section 161 of Cr.P.C. Further, P.W.2 could not identify the accused in the Court. Therefore, the conviction is liable to be set aside and prayed the Court to set aside the conviction and sentence by allowing the appeal. Even otherwise, the evidence on 4 SKS,J Crl.A.No.15 of 2019 record is not sufficient to prove the guilt of the accused. Mainly, the victim girl failed to identify the accused in the Court and there is discrepancy in the names of the accused, as such, prayed the court to allow the appeal by acquitting the accused.
8. Per contra, the learned Assistant Public Prosecutor would submit that the evidence on record is sufficient to prove the guilt of the accused and statement of the victim itself is sufficient to convict the accused. Further, there are presumptions under Sections 29 and 30 of the POCSO Act and as such, prayed the Court the dismiss the appeal.
9. Now the point for consideration is whether the judgment of trial court needs any interference or not.
10. Having regard to the rival submissions and the evidence on record, the name of the accused as stated by the prosecution is Shaik Irffan @ Adaam @ Omer. The crucial witness in this case is the victim girl, who is aged about 3 ½ years old. She deposed about the incident and to test her veracity, the learned Judge had asked preliminary questions and after being satisfied with her answers only, her evidence was recorded. Learned counsel for the appellant also not disputed the veracity of the testimony of P.W.2. The victim girl narrated the incident in the Court. In her cross- examination, she stated that she knows the person by name 5 SKS,J Crl.A.No.15 of 2019 Adaam and that he is her maternal uncle. Exs.D1 and D2 are the relevant portions of Section 161 Cr.P.C., statement of the victim girl.
11. P.W.1 is the father of P.W.2. He lodged a complaint with police and his evidence is that neighbors informed him about the incident that the accused, who is his friend, came to their house and committed the offence. Though he was cross-examined, nothing was elicited in favour of the accused.
12. P.W.3 is the women police, who recorded the statement of the victim girl. P.W.4 is the Investigating Officer and he deposed about the investigation done by him.
13. The crucial evidence on record is of P,.W.2 and the same is corroborating with that of P.W.1. The only contention raised by the learned counsel for appellant is the identity of the accused. The accused is the friend of P.W.1 and the victim has clearly deposed that Adaam uncle has committed the offence. Prosecution disputed the contention of learned counsel for the appellant/accused that name is different. The contention of the prosecution is that the accused has two other names i.e., Shaik irfan and Adaam besides his original name Shaik Omer and his name was written in the record as Shaik Irfan @ Adaam @ Omer. 6
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14. Though the counsel for the appellant submitted that real culprit is maternal uncle of P.W.2., and this accused was falsely implicated, no reasons were assigned to falsely implicate the accused in the case. There is no evidence on record. To prove that there are disputes between the accused and P.W.1 and nothing is brought on record to prove that due to the disputes between P.W.1 and the accused, the accused was falsely implicated in this case at the cost of reputation of 3 ½ old daughter.
15. The evidence on record clearly shows the commission of offence by the accused. The evidence of the victim girl is corroborating with the statement under Section 164 of Cr.P.C. The victim girl is aged about 3 ½ years. There is no necessity for her to implicate the accused in such a heinous offence. Therefore, there is no reason to disbelieve her, her evidence and it can be accepted as it is unshaken evidence.
16. There are no infirmities in the judgment of the trial court. The trial Court has rightly convicted the accused and there are no merits in the appeal. Whereas considering the age of the accused, the sentence imposed for the offence under Section 11(i) under Section 12 of the POCSO Act is modified reduced to one year from three years.
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17. IN THE RESULT, the present Criminal Appeal is partly allowed. The sentence of three (3) years rigorous imprisonment imposed under Section 11(i) punishable under Section 12 of the POCSO Act on the appellant/Accused in S.C.P.C.S.No.124 of 2016, dated 13.04.2018 by the learned I Additional Metropolitan Sessions Judge-cum-Special Judge for trial of Cases under Protection of Children from Sexual Offences Act, Hyderabad, alone is reduced from three (3) years to one (1) year. The remaining sentences are confirmed. All the sentences shall run concurrently. As the appellant is on bail, appellant/accused is directed to surrender before the trial Court within fifteen days from today, for serving out the remaining sentence. In case, the appellant fails to surrender, the trial Court shall take steps to secure the presence of accused for serving out the remaining sentence.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
______________ K.SUJANA, J DATE:
SAI 8 SKS,J Crl.A.No.15 of 2019 THE HON'BLE SMT JUSTICE K. SUJANA CRIMINAL APPEAL No.15 of 2019 SAI