THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.312 of 2021
JUDGMENT:
1. The appellant was tried for the offences under Sections 376- AB, 323 IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'the Act of 2012'). However, the learned Sessions Judge convicted the accused for the offences under Section 376-AB r/w 511 of IPC and he was acquitted for the offences under Sections 376-AB, 323 IPC and Section 6 of the Act of 2012 and sentenced to undergo rigorous imprisonment for a period of ten years vide judgment in SC POCSO No.111 of 2020, dated 26.04.2021 passed by the Special Sessions Judge for trial of Cases under Protection of Children from Sexual Offences Act-cum-I Additional Sessions Judge at Khammam.
2. Briefly, the case of the prosecution is that P.W.1, who is the mother of victim girl/P.W.2 went to the house of the appellant while searching for daughter and saw that the appellant has removed his clothes and also removed the clothes of the girl and the appellant slept on girl. Accordingly, she questioned the appellant. The appellant beat her and ran away. For the said reason, she lodged 2 complaint Ex.P1 with the police. The police having investigated the case filed charge sheet for the said offences.
3. Learned Sessions Judge during the course of trial examined P.Ws.1 to 12 and marked Exs.P1 to P7. Having considered the evidence, learned Sessions Judge found that there was no offence of rape, but there was an attempt to rape the victim girl/P.W.2, accordingly, convicted the appellant.
4. Learned counsel appearing for the appellant would submit that the victim girl has turned hostile to the prosecution case. Even the Doctor has stated that according to his opinion, there were no injuries on the private parts of the victim girl and there was no sign of sexual assault on the victim girl. In the said circumstances, when no rape was committed, the prosecution has miserably failed to prove any offence against the appellant.
5. Having gone through the record, the victim girl was examined as P.W.2, who turned hostile to the prosecution case and stated that the appellant had asked her to sleep on him. However, she did not mention that either her clothes were removed or the clothes of 3 the appellant were removed. The Public Prosecutor had treated the victim girl as hostile and cross-examined her.
6. In the cross-examination, the victim girl has stated that the appellant removed his clothes and made her lie over him. However, again when the cross-examination was conducted by the legal aid counsel, it was stated by the victim girl that her mother asked her to narrate against the appellant.
7. The medical evidence is not supporting any kind of rape. Admittedly, no injuries were found on the body. The evidence that is common amongst P.Ws.1 and 2 is that the victim girl was made to sleep on the appellant. The said act amounts to getting into physical contact without penetration and attracting the definition of sexual assault under Section 7 of the Act. The evidence of the doctor rules out any sexual assault or rape.
8. In the result, the conviction under Section 376-AB r/w 511 IPC is set aside and the appellant is convicted for the offence under Section 8 of the Act of 2012 and sentenced to three years rigorous imprisonment. Since it is stated that the appellant is in jail, he shall 4 be set at liberty after completion of sentence, if he is not required in any other case.
9. Accordingly, the Criminal Appeal is partly allowed. Miscellaneous applications pending, if any, shall stand closed.
_________________ K.SURENDER, J Date: 26.09.2023 kvs 5 THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.312 OF 2021 Date: 26.09.2023 kvs