Andhra Pradesh High Court - Amravati

Namburi Kondala Rao, Prakasam ... vs The State Of Ap., Rep Pp., on 7 December, 2022

Bench: C.Praveen Kumar, B V Chakravarthi

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                               AND

 THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

            CRIMINAL APPEAL No.810 of 2016

JUDGMENT : (per Hon'ble Sri Justice C. Praveen Kumar)

      Sole accused in POCSOA Sessions Case No.37 of

2016 on the file of learned Special Judge for Trial of

Protection of Children from Sexual Offences Act Cases-

cum-I Additional District and Sessions Judge, Ongole is

the appellant herein. He was tried for the offences

punishable under Section 363, 506 of Indian Penal Code,

1860 [for short, "I.P.C."] and Section 6 of Protection of

Children from Sexual Offences Act, 2012 [for short,

"POCSO Act"].


2.    By its judgment, dated 27.06.2016, the learned

Sessions Judge convicted the accused for the offence

punishable under Section 6 of POCSO Act and sentenced

him to suffer Rigorous Imprisonment for Life and also to

pay a fine of Rs.1000/-, in default to suffer Simple

Imprisonment     for   Three   Months.     Further,     he   was
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sentenced for Rigorous Imprisonment for Seven Years and

also pay a fine of Rs.1000/-, in default to suffer Simple

Imprisonment for Three Months for the offence punishable

under Section 363 of I.P.C.       The substantive sentences

were directed to be run concurrently.


3.   The   facts,   as   disclosed   from   the     evidence       of

prosecution witnesses, are as under:-


     (a) P.W.1 is the victim girl, P.W.2 is her grand-mother

while P.W.3 is her mother. On 27.01.2016 at about 4.00

p.m., P.W.1 was playing along with P.W.5 near High

School, China Latarapi Village. At that time, P.W.5 who

was playing with P.W.1 took Rs.15/- and ran away towards

his house stating that he will repay the money if she comes

to his house. While P.W.1 was following P.W.5, the accused

came opposite to P.W.1, stopped the Auto, took her into the

Auto, closed her mouth with a kerchief and pressed her

mouth, as a result of which, she felt unconscious. When

she regained conscious she noticed the auto going towards

Narasapuram.
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     (b) The evidence on record also shows that the hands

of P.W.1 were tied with Navvaru [rope]. It is said that the

Auto stopped near the forest fields, where P.W.1 was

dragged out of the Auto and then the accused committed

rape on her forcibly by removing her clothes and also the

clothes of the accused. It is said that the accused also bite

on the chest of the victim. Thereafter, the accused brought

the victim to the village in the same Auto and dropped her.

He is said to have threatened her stating that threatened

her stating that if she reveals to anybody he would kill her.

However, P.W.1 narrated the incident to P.Ws.2 and 3, and

thereafter the law was set into motion by lodging a report

with P.W.12-Sub Inspector of Police, who registered a case

in Crime No.14 of 2016 under Section 366 I.P.C. and

Section 6 of POCSO Act. Ex.P30 is the original F.I.R. After

registering the crime, P.W.12 informed the same to P.W.11-

Sub Divisional Police Officer, Kandukur and also forwarded

the victim girl to Government General Hospital, Kandukur

for medical examination.


     (c) P.W.7-Civil Assistant Surgeon examined the victim

on 28.01.2016 at about 6.30 a.m. and issued Ex.P5-
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Preliminary Report,       Ex.P6-A.P.F.S.L.   report and gave

Ex.P7-final report stating that there is an evidence of

recent attempt of intercourse.


      (d) P.W.11, who continued with the investigation,

recorded the statements of P.Ws.1 and 2 and seized the

clothes of victim girl under Ex.P4-Mediatornama.              The

Investigating Officer also got the scene of offence, rough

sketches of the scene prepared which are placed on record

as Ex.P12 and Ex.P13 respectively.        P.W.11 also made a

request for getting Section 164 Cr.P.C. statement of the

victim.   Ex.P23 is the memo filed before the Principal

Junior Civil Judge, Kandukur to record the statement of

victim girl.    He also obtained certificate of the age under

Ex.P26.    On 20.02.2016, the accused was arrested at

Venkampeta Village in the presence of P.W.9.             After the

arrest,   the   accused    was   also   subjected   to    medical

examination.


4.    After collecting all the necessary documents, P.W.11-

Sub-Divisional Police Officer filed a Charge Sheet, which

was taken on file as POCSOA Sessions Case No.37 of 2016
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on the file of Special Judge for Trial of Protection of

Children from Sexual Offences Act Cases-cum-I Additional

District and Sessions Judge, Ongole.


5.      On   appearance   of   the   accused,   copies    of    the

documents as required under Section 207 Cr.P.C. were

supplied to him.


6.      Basing on the material available on record, charges,

as referred to earlier, came to be framed, read over and

explained to the accused in Telugu, to which, he pleaded

not guilty and claimed to be tried.


7.      To substantiate its case, the prosecution examined

P.Ws.1 to 12 and got marked Exs.P1 to P30 and M.Os.1

to 6.


8.      After the closure of Prosecution evidence, the accused

was examined under Section 313 Cr.P.C. with reference to

the incriminating circumstances appearing against him in

the evidence of the prosecution witnesses, to which, he

denied.      The accused did not adduce any oral or

documentary evidence on his behalf.
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9.    Relying on the evidence of P.Ws.1 to 5 coupled with

the medical evidence, the learned Sessions Judge convicted

the accused under both the offences. Challenging the

same, the present appeal came to be filed.


10.   Sri B. Parameswara Rao, learned Legal Aid Counsel

for the appellant mainly submits that the evidence of P.W.1

cannot be made the basis to connect the accused with the

crime as the same is not corroborated with other evidence.

He further submits that in the F.I.R., the name of the

accused was not mentioned and as such the accused came

to be implicated in the case long after the incident.           He

further submits that the medical evidence does not

corroborate the evidence of victim girl, as such, the

accused is entitled for the benefit of doubt.


11.   Sri Soora Venkata Sainath, learned Additional Public

Prosecutor opposed the same, contending that P.W.1 being

a victim girl, aged about twelve years has no reason to

speak against the accused.        He further submits that the

medical evidence corroborates the evidence of P.W.1 in all

material aspects and that her version is also supported by
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the evidence of P.Ws.2 and 3. Learned Additional Public

Prosecutor also submits that the accused is involved in

another case of similar nature and he seems to be a

habitual offender.


12.   The point that arises for consideration is, whether

the prosecution was able to bring home the guilt of the

accused beyond reasonable doubt?


13.   As seen from the record, P.W.1 is the victim girl, aged

about ten years at the time of offence. According to her, on

27.01.2016

at about 4.00 p.m. while she along with P.W.5

were playing near High School, P.W.5 took Rs.15/- from

the victim girl and ran away, promising to return, if she

follows him to his house. While the victim girl was

following P.W.5, the accused came opposite to her in an

Auto, took her into the Auto, closed her mouth, with a

handkerchief and pressed her mouth. P.W.1 felt

unconscious and when she regained conscious she noticed

the Auto going towards Narsapuram side. At that point of

time, the accused stopped the Auto near the forest fields,

dragged her to the fields and forcibly committed rape on

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her. The evidence of P.W.1 also shows that her hands were

tied with a Navvaru piece and she was also threatened to

be killed. After committing the rape, the accused dropped

the victim girl in the village and threatened with dire

consequences, if she reveals about the incident to others.

However, P.W.1 informed the same to her mother and

grand-mother, who lodged a report on the very same night.

14. Though, P.W.1 was cross-examined at length,

nothing useful came to be elicited to discredit her

testimony. In fact, it was elicited that she was in an

unconscious state when the accused tied her two hands

with a Navvaru piece. To a suggestion that the accused

never showed the knife and never threatened her, was

denied by P.W.1. To a suggestion that the accused never

dragged her was denied by her. To a suggestion that P.W.1

did not inform the name of the accused, while drafting

Ex.P1 report, was also denied by her.

15. The evidence of PW1 gets support, to the extent of

disclosing the incident, at the earliest point of time, from

the evidence of PW2 and PW3 which is evident from the

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contention of the report. Both these witnesses were cross-

examined at length, but, we do not find any material to

discredit their version.

16. The act of PW1 playing with PW5 on 27.01.2016 at

about 4.00 P.M. and, thereafter, accused coming in a auto,

stopping in-front of PW1 and taking her into the auto, also

gets support from the evidence of PW5. It may be true that,

PW5 who is aged about 13 years might not have stated in

his earlier statement that accused took the victim-girl in

the auto, but, at-least his evidence, to an extent of accused

coming there and intercepting PW1, stands established.

Therefore, the argument of the learned Counsel for the

Appellant that there is no other evidence except PW1,

which cannot be made basis to prove the offence, cannot

be accepted. Further, there are few circumstances, which

would show that PW1 is speaking the truth.

17. One of the circumstances which we intend to refer to

is with regard to blood and semen in vaginal swab. Much

comment has been made, stating if really the victim-girl

was raped, there would have been stains of semen on the

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clothes of PW1. But, it is to be noted here that, PW1 in her

evidence categorically states that, her clothes were removed

and she was subjected to sexual assault. Therefore, the

clothes of the victim-girl [PW1] being not stained with any

foreign material, cannot be a ground that there was no

assault. It is also to be noted that the vaginal swabs taken

on the very next day contains spermatozoa. The same is

proved by the F.S.L. report, which is placed on record as

Ex.P6. Therefore, the fact that the injured [PW1] was

subjected to sexual assault stands established.

18. At this stage, learned Counsel for the Appellant

would try to contend that, since, the name of the accused

was not mentioned in Ex.P1, it is doubtful whether it was

he who committed the offence. It is true that, in the First

Information Report, the name of the accused is not

specifically mentioned, but, however, it is stated that, a

resident of Venkampeta came opposite to her, stopped the

auto, closed her nose with his handkerchief and,

thereafter, committed the offence after taking her to forest

land. While giving evidence in Court, she identifies the

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accused and also states that he is a known person. That

being so, it is difficult to doubt the involvement of the

accused in the commission of the offence. Further, when

accused is known person, it is not be necessary to hold any

Test Identification parade. Therefore, this argument of the

learned counsel for the Appellant that in the absence of the

name of the accused in the F.I.R., the entire case has to be

thrown out also cannot be accepted.

19. The Medical Officer, who was examined as PW7, in

his chief categorically speaks about the three injuries on

the body of PW1. Injury No. (2) refers to "teeth bite injuries

on left breast, lateral aspect of one in number, oval in

shape, upper two and lower two bites marks were present".

Injury no. (3) relates to "external genitalia examination

liner laceration present below the middle of the Introitus of

size ½ x ½. Therefore, the evidence of the doctor [PW7]

categorically establish that there was an intercourse.

20. At this stage, the learned Counsel for the Appellant

would contend that, the evidence of the doctor only speaks

about an attempt to commit an offence and, as such,

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Section 6 of the Act, does not get attracted. The word

"penetrative sexual assault" is defined in Section 3 of the

Act, while Section 5 deals with "aggravated penetrative

sexual assault'. The meaning of the word "penetrative

sexual assault" as referred to in section 3 of the Act, is as

under:-

"Section 3: Penetrative sexual assault:

A person is said to commit "penetrative sexual assault" if--

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person"

21. A reading of the above would show that, penetration

to any extent either into vagina, mouth, urethra or anus of

a child amounts to penetrative assault. Though, hymen is

intact, but the injury No. 3 categorically establishes

penetration. Hence, it cannot be said that, there was only

an attempt and no rape.

22. For all the aforesaid reasons, we confirm the

conviction and sentence imposed by the trial Court for the

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offence punishable under Section 363 of I.P.C. and Section

6 of the POCSO Act.

23. A perusal of the judgment does not indicate any

finding under Section 506 I.P.C. Neither the learned

Sessions Judge refers to acquitting the accused nor the

judgment shows any punishment being awarded under

Section 506 I.P.C. But, the evidence of PW1, as we have

seen above, clearly indicates that, she was put under fear

and, thereafter, the offence was committed and even after