Andhra Pradesh High Court - Amravati
Parshyapu Deepak Kumar, Krishna Dt., vs The State Of Ap., Rep Pp.. on 30 September, 2024
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
HON'BLE SRI JUSTICE K.SURESH REDDY
AND
HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos. 66, 147, 157, 256 & 994 OF 2017
COMMON JUDGMENT:
(per Hon'ble Sri Justice K.Suresh Reddy)
Accused Nos. 1 to 5 in Sessions Case No. 60 of 2014 on the file
of the Court of learned Special Judge for Trial of Offences under
Protection of Children from Sexual Offences Act - cum - Additional
Metropolitan Sessions Judge, Vijayawada (for short, 'the trial Court'),
are the appellants in Criminal Appeal Nos. 994, 66, 157, 256 and 147 of
2017 respectively. Since all these appeals arise out of the same
Sessions Case, they are heard together and are being disposed of by
this common judgment.
2. Accused Nos. 1 to 5 were tried by the trial Court under the
following charges:
I charge was under Section 4 read with Section 3 (a) of the
Protection of Children from Sexual Offences Act, 2012 (for short,
'POCSO Act'), against accused No. 1 or in the alternative under
Section 376 (1) read with Clause I of 375 of Indian Penal Code
(for short, 'IPC') for committing penetrative sexual assault against
P.W.2 on 12-12-2013 at about 3 p.m. at his house situated near
Kennedy High School, Kanuru;
II charge was under Section 384 IPC against accused No. 1 for
extorting a gold chain from P.W.2 under threat on 15-12-2013 at
NTR Circle, Vijayawada;
III charge was under Section 384 IPC against accused Nos. 1, 2,
4 and 5 for extorting a gold chain from P.W.2 by showing video
containing her sexual act with accused No. 1 four or five days
prior to 15-12-2013;
IV charge was under Section 67 B of the Information Technology
Act, 2000, against accused Nos. 1, 2, 4 and 5 for showing video
of sexual act of P.W.2 with accused No. 1 four or five days prior to
15-12-2013;
V charge was under Section 6 read with Section 5 (g) of POCSO
Act against accused Nos. 1, 2, 4 and 5 for committing gang
penetrative sexual assault on P.W.2 on 15-02-2014 at about 1
p.m. or in the alternative under Section 376 D IPC or in the
alternative under Section 6 read with Section 5 (1) of POCSO Act
or in the alternative under Section 376 (2) read with Section 376
(2) (n) IPC;
VI charge was under Section 4 read with Section 3 (a) of POCSO
Act against accused No. 1 for committing penetrative sexual
assault on P.W.4 during June, 2014 at 7 p.m. or in the alternative
under Section 376 (1) read with Clause I of 375 IPC;
VII charge was under Section 12 read with Section 11 (i) of
POCSO Act against accused Nos. 1, 2, 4 and 5 for committing
sexual harassment against P.W.4 during the last week of July,
2014, or in the alternative under Section 354 A (2) read with
Section 354 A (1) (ii) IPC;
VIII charge was under Section 384 IPC against accused Nos. 1 to
3 for extorting gold rings from P.W.6 two months prior to
08-09-2014 at Kamayyathopu Centre Bus Stop, Kanuru;
IX charge was under Section 12 read with Section 11 (i) of
POCSO Act for committing sexual harassment on P.W.6 two
months prior to 08-09-2014 at Kamayyathopu Centre Bus Stop,
Kanuru, or in the alternative under Section 354 (2) read with
Section 354 A (1) (iv) IPC;
X charge was under Section 14 (2) read with Section 13 (a) (b) of
POCSO Act against accused No. 1 for using P.W.4 for
pornographic purpose on 23-08-2014; and
XI charge was under Section 14 (1) read with Section 13 of
POCSO Act against accused Nos. 2 to 5 for using P.W.4 for
pornographic purpose on 23-08-2014 and 16-09-2014.
3. After completion of trial, the trial Court convicted the accused as
under:
Under charges II and III, accused Nos. 1, 2, 4 and 5 are
sentenced to suffer rigorous imprisonment for one year and also to pay
a fine of Rs.10,000/- each, in default to suffer simple imprisonment for a
period of three months; under charge IV, accused Nos. 1, 2, 4 and 5 are
sentenced to suffer rigorous imprisonment for two years and also to pay
a fine of Rs.20,000/- each, in default to suffer simple imprisonment for a
period of six months; under charge V, accused No. 1 is sentenced to
suffer imprisonment for life i.e. natural life and also to pay a fine of
Rs.2,00,000/-, in default to suffer simple imprisonment for a period of six
months, and accused Nos. 2, 4 and 5 are sentenced to suffer
imprisonment for 20 years and also to pay a fine of Rs.1,00,000/- each,
in default to suffer simple imprisonment for a period of six months; under
charge VI, accused No. 1 is sentenced to suffer imprisonment for seven
years and also to pay a fine of Rs.50,000/-, in default to suffer simple
imprisonment for a period of six months; under charge VII, accused
Nos. 1, 2, 4 and 5 are sentenced to suffer rigorous imprisonment for one
year and also to pay a fine of Rs.10,000/- each, in default to suffer
simple imprisonment for a period of three months; and under charge XI,
accused Nos. 2 to 5 are sentenced to suffer rigorous imprisonment for
three years and also to pay a fine of Rs.10,000/- each, in default to
suffer simple imprisonment for a period of three months. The trial Court
acquitted accused Nos. 1 to 3 of charges VIII and IX and also acquitted
accused No. 1 of charge X.
4. Case of the prosecution as per the evidence of prosecution
witnesses is thus:
On 22-08-2014, P.W.3 went to Mahila Police Station, Vijayawada,
and gave a report-Ex.P2 to the Inspector of Police, Mahila Police
Station-P.W.16. On the basis of the said report, P.W.16 registered a
case in crime No. 106 of 2014 for the offences under Sections 384, 354
A (1) (ii), 354 D (1), 506 and 509 read with Section 34 IPC under
Ex.P20-FIR. In Ex.P2, P.W.3 stated that she is a homemaker and her
husband is working as Quality Control Engineer in S.G. Prakasa
Spectro Casting. They were blessed with one daughter-P.W.4 and one
son. P.W.4 completed her II year intermediate and also appeared for
EAMCET examination. As P.W.3 found missing of cash of Rs.10,000/-,
she along with her husband questioned P.W.4 and her brother. Both
the children denied about the missing of cash. After some time, P.W.3
also found missing of gold chain belonging to P.W.4. When P.W.3 and
her husband confronted P.W.4, she disclosed that four persons i.e.
accused Nos. 1 to 3 and one Ravi Teja-child in conflict with law were
following and teasing her with obscene words. She further disclosed
that the said four persons threatened her that they had a big gang; that
they demanded money from her and due to fear, she paid an amount of
Rs.10,000/- periodically and that when they further demanded money
threatening to kill her father, she gave gold chain worn by her.
Having received the report, P.W.16 went to the house of P.W.3 on
the next day and recorded statement of P.W.4. In her statement, P.W.4
specifically stated that the accused committed penetrative sexual
assault on her. After recording the statement of P.W.4, P.W.16 added
Section 376 IPC and Section 6 of POCSO Act and issued Ex.P21-
Altered FIR. On the same day afternoon, P.W.16 went to the house of
accused No. 1 along with P.W.12 and another-Mediators and
apprehended accused No. 1 under Ex.P8-Panchanama. Accused No. 1
made a confession under Ex.P7 in the presence of mediators. On the
confession made by accused No. 1, P.W.16 seized M.Os.3 to 6 from his
possession. On the confession made by accused No. 1, P.W.16
arrested accused Nos. 2 to 5 at NTR Circle, Vijayawada, and recovered
4 C.Ds. from the possession of accused Nos. 2 to 5 under Ex.P9.
Accused No. 1 further confessed that he sold gold chains-M.Os.1 and 2
at the gold shop of P.W.8 situated at Kaleswara Rao Market,
Vijayawada. Immediately, P.W.16 went to the shop of P.W.8 and seized
M.Os.1 and 2 from the shop of P.W.8 in the presence of mediators.
During the course of investigation, P.W.16 came to know that the
accused committed penetrative sexual assault and also extorted money
and gold from various victim girls studying intermediate. As such,
P.W.16 gave wide publicity through print and electronic media on
22-08-2014 and 23-08-2014 requesting the victims to approach her and
that they will not disclose the details of the victims. During the course of
investigation, P.W.16 came to know that about 12 victims, studying
intermediate, were lured and trapped by the accused but only 3 victim
girls came forward and they are P.Ws.2, 4 and 6. Having noticed the
publicity given by P.W.16, P.W.1, mother of another victim girl-P.W.2,
approached P.W.16 and gave a statement. Thereafter, P.W.16 also
recorded statement of P.W.2. In her statement, P.W.2 stated that the
accused committed penetrative sexual assault on her and extorted
money and gold from her. Similarly, P.W.5, mother of another victim
girl-P.W.6, also approached P.W.16 and stated that her daughter was
also lured and teased by the accused. P.W.16 also recorded statement
of P.W.6. In her statement, P.W.6 stated that the accused extorted gold
matties-M.O.3 from her. All the three victim girls i.e. P.Ws.2, 4 and 6
specifically stated that the accused morphed their photos and also taken
photos and videos of sexual assault of P.Ws.2 and 4. Photographs
were marked as Exs.P26 to P28. Statement of P.W.1 was recorded on
05-09-2014 and statement of P.W.8 was recorded on 08-09-2014.
P.W.16 conducted test identification parade on 08-09-2014 to
identify M.Os.1 to 3 under Exs.P12 and P13 in the presence of P.W.7
and another. In the said test identification parade, P.W.2 and P.W.6
identified M.Os.1 to 3. On the same day, P.W.16 seized one C.D. from
accused No. 3, which contains obscene photos and videos, under
Ex.P14-Panchanama. On 05-09-2014, P.W.14-Professor, Head of the
Department of Forensic Medicine, Siddhartha Medical College,
Vijayawada, examined accused Nos. 1 to 5 and gave potency
certificates under Exs.P15 to P19. P.W.9-Principal, Sri Chaitanya
Mahila Junior Kalasala, Mythreyee Campus, Ganguru, issued Ex.P4-
Study Certificate pertaining to P.W.2. Similarly, P.W.10-Principal, Sri
Vignana Vihara English Medium School, Enikepadu, issued Ex.P5-
Letter stating that the date of birth of P.W.4 is 30-11-1996. Similarly,
P.W.11-Principal, Ravindra Bharathi School, Mogalrajpuram,
Vijayawada, issued Ex.P6-Letter indicating the date of birth of P.W.6 as
20-09-1997. According to P.Ws.9 to 11, all the three victims i.e. P.Ws.2,
4 and 6 were minors on the date of commission of offence. P.W.16 sent
M.Os.5 to 8 to Forensic Science Laboratory under Ex.P24-Letter of
advice. F.S.L. Report is marked as Ex.P25 which shows that the items
sent to F.S.L. contain unedited videos and images. The report further
indicated that no morphing was present in the said items. After
receiving F.S.L. Report and after completion of investigation, P.W.16
filed charge sheet.
5. In support of its case, the prosecution examined P.Ws.1 to 16 and
got marked Exs.P1 to P30 apart from exhibiting M.Os.1 to 8.
6. When the accused were examined under Section 313 Cr.P.C.,
they denied the incriminating material appearing against them and
reported no defence evidence but however got marked Ex.D1-Photostat
Copy of paper clipping of Andhra Jyoti Telugu Daily on their behalf.
7. Accepting the evidence of prosecution witnesses, the trial Court
convicted the accused as stated supra.
8. Dr. Challa Srinivasa Reddy, learned counsel appearing for the
appellants-accused Nos. 1 and 5, would contend that there is any
amount of delay in lodging report to police and P.Ws.2, 4 and 6 kept
quiet for a period of six months without informing the incident to anyone;
that P.Ws.2, 4 and 6 were not subjected to medical examination to know
whether or not the accused committed penetrative sexual assault on
them; that P.W.2 at one stage stated that the incident took place at
about 2 p.m. and she at another stage stated that the incident took
place at about 6 p.m. on 15-02-2014 and as such, the evidence of
P.W.2 is contradictory as there is variation of time; that the evidence
adduced by the prosecution by exhibiting M.Os.5 to 8 does not meet the
requirements of Section 65-B of the Indian Evidence Act, 1872 (for
short, '1872 Act'), and that the evidence of P.Ws.2, 4 and 6 coupled with
the evidence of P.Ws.1, 3 and 5 cannot be believed as it is a belated
version.
9. Sri Narra Srinivasa Rao, learned counsel appearing for the
appellants-accused Nos. 3 and 4, would contend that P.W.2 did not
state about the rape committed by accused Nos. 3 and 4 and that P.W.2
in her evidence stated that the accused committed sexual act and as
such, they cannot be convicted under Section 376-D IPC, of course
accused No. 3 was not convicted under Section 376-D IPC by the trial
Court.
10. Sri Challa Ajay Kumar, learned counsel appearing for the
appellant-accused No. 2, would contend that accused No. 2, as on the
date of commission of offence, was less than 18 years of age and
accordingly I.A.No. 1 of 2022 was filed seeking his release on bail; that
this Court by order dated 09-11-2022 directed the Juvenile Justice
Board concerned to determine the age of accused No. 2 as on the date
of commission of offence and submit a report to the Court within a
period of two weeks from the date of the order and that the Principal
Magistrate, Juvenile Justice Board - cum - II Additional Chief
Metropolitan Magistrate, Vijayawada, conducted an inquiry and
submitted a report dated 07-12-2022 determining the age of accused
No. 2 as less than 18 years on the date of commission of offence and
he was a child in conflict with law.
11. On the other hand, learned Public Prosecutor opposed the
criminal appeals and supported the judgment of conviction and
sentence passed by the trial Court. Learned Public Prosecutor would
contend that in a case of this nature, there will be some delay as
reputation of family of the victim girls would be at stake; that though
P.Ws.2, 4 and 6 were not subjected to medical examination, their
evidence coupled with the evidence of P.Ws.1, 3 and 5 can be relied on;
that it is only after giving wide publicity by P.W.16 on 22-08-2014 and
23-08-2014 in print and electronic media, P.Ws.2 and 6 along with
P.Ws.1 and 5 came forward and till such time, P.Ws.2, 4 and 6 were
threatened by the accused with dire consequences of uploading their
photos and videos in social media and internet; that P.Ws.2, 4 and 6
were further frightened that the accused belonged to a big gang and
they may cause harm to lives of their family members; that the video
files and the material objects were played in the presence of the
accused and their counsel, which were received from F.S.L., enabling
them to prosecute their defence; that as M.Os.5 to 8 contain the original
data and as there is no transfer of data from the original mobile phone,
pen drive and D.V.Ds., there is no necessity to obtain certification as
required under Section 65-B of 1872 Act and that even if P.Ws.2, 4 and
6 were subjected to medical examination, no useful purpose would be
served as there was a time gap of more than six months. He therefore
prays to dismiss the criminal appeals by confirming the conviction and
sentence recorded by the trial Court.
12. This Court perused the entire material available on record.
13. It is P.W.3, mother of P.W.4, who set the criminal law into motion.
As cash and gold were found missing from house, P.W.3 questioned her
daughter-P.W.4. It is only thereafter, P.W.4 informed P.W.3 about the
offences committed by the accused. Having come to know of the same
from P.W.4, P.W.3 immediately i.e. on 22-08-2014 gave a report to
P.W.16. Basing on the report of P.W.3, a case in crime No. 106 of 2014
of Mahila Police Station, Vijayawada, was registered. On the very next
day, P.W.16 went to the house of P.W.3 and recorded statement of
P.W.4., in which she narrated the entire offence committed by the
accused. Having come to know about the incidents through P.W.4,
P.W.16 gave wide publicity in print and electronic media on 22-08-2014
and 23-08-2014 highlighting about trapping of innocent girls who are
studying intermediate and blackmailing them with photos and videos
and extorting money and gold from them and requested the victim girls if
any to come forward and make a complaint and assured that their
identity and other particulars would not be disclosed. It is only on that
assurance, P.Ws.1 and 5 came forward and stated that P.Ws.2 and 6
were also victims in the hands of the accused.
14. So far as recovery of gold chains-M.Os.1 and 2 is concerned,
P.W.8 clearly stated in his evidence that accused No. 1 sold M.Os.1 and
2 in his gold shop. The evidence of P.W.12-mediator also clearly shows
that M.Os.1 and 2 were recovered from the shop of P.W.8 on the
confession made by accused No. 1. Similarly, P.W.12-mediaotr in his
evidence clearly stated that M.Os.4 to 8 were recovered from the
possession of the accused and that they were sent to Forensic Science
Laboratory and the report of Forensic Science Laboratory was marked
as Ex.P25. As such, the prosecution is able to prove recovery of
M.Os.1 to 8 by adducing the evidence of P.Ws.4 to 8. The evidence of
P.Ws.9 to 11 coupled with Exs.P4 to P6 clinchingly established that
P.Ws.2, 4 and 6 were minors on the date of offence.
15. Even according to P.W.2, accused No. 4 did not commit offence
against her on 15-02-2014. Though it is alleged by the prosecution that
accused Nos. 1, 2, 4 and 5 committed penetrative sexual assault on
P.W.2, she did not state in her evidence that accused No. 4 also
committed penetrative sexual assault on her. P.W.2 in her evidence
stated that it is only accused Nos. 1, 2 and 5 who committed penetrative
sexual assault on her.
16. Sri Challa Ajay Kumar, learned counsel appearing for the
appellant-accused No. 2, places reliance on Karan @ Fatiya Vs. State
of Madhya Pradesh1; and Shilpa Mittal Vs. State (NCT of Delhi) and
another2 to contend that the Court, which finds that the person who
committed the offence was a child on the date of commission of such
offence, would forward the child to the Juvenile Justice Board for
passing appropriate orders and sentence, if any, passed by the Court
shall be deemed to have no effect and that the sentence in such a
situation cannot exceed a period of three years.
(2023) 5 SCC 504
(2020) 2 SCC 787
17. Sub-section (3) of Section 9 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, does not specifically or even impliedly
provide that the conviction recorded by any Court with respect to a
person who has subsequently after the disposal of the case been found
to be juvenile or a child would also lose its effect rather it is only the
sentence if any passed by the Court would be deemed to have no
effect. The intention of the legislature was to give benefit to a person
who is declared to be a child on the date of offence only with respect to
its sentence part. In the case on hand, pursuant to the orders of this
Court dated 09-11-2022, the Principal Magistrate, Juvenile Justice
Board - cum - II Additional Chief Metropolitan Magistrate, Vijayawada,
conducted an inquiry and submitted a report dated 07-12-2022
determining the age of accused No. 2 as less than 18 years on the date
of commission of offence and he was a child in conflict with law.
18. For all the reasons recorded hereinabove, it is ordered as follows:
Criminal Appeal Nos. 157 and 147 of 2017 are hereby dismissed
by confirming the conviction and sentence recorded against the
appellants-accused Nos. 3 and 5 by judgment dated 31-12-2016 and
04-01-2017 in S.C.No. 60 2014 on the file of the Court of learned
Special Judge for Trial of Offences under POCSO Act - cum -
Additional Metropolitan Sessions Judge, Vijayawada.
So far as Criminal Appeal No. 994 of 2017 filed by the appellant-
accused No. 1 is concerned, the same is dismissed by confirming the
conviction and sentence recorded against the appellant-accused No. 1
for the offences under Section 384 IPC, Section 67-B of the Information
Technology Act, 2000, Section 4 read with Section 3 (a) of POCSO Act
and Section 12 read with Section 11 (i) of POCSO Act and so far as the
offence under Section 376-D IPC is concerned, considering the age of
the appellant-accused No. 1, while confirming the conviction recorded
against him, the sentence is reduced from life imprisonment i.e. natural
life to imprisonment for twenty years and also to pay a fine of
Rs.2,00,000/-, in default to suffer simple imprisonment for a period of six
months.
So far as Criminal Appeal No. 66 of 2017 filed by the appellant-
accused No. 2 is concerned, the same is disposed of by upholding the
judgment of conviction of the appellant-accused No. 2 dated 31-12-2016
but set aside the order on sentence dated 04-01-2017. Further, as the
appellant-accused No. 2 at present would be more than 27 years old,
there would be no requirement of sending him to the Juvenile Justice
Board or any other child care facility or institution. The appellant-
accused No. 2 shall be released forthwith.
So far as Criminal Appeal No. 256 of 2017 filed by the appellant-
accused No. 4 is concerned, the same is partly allowed by setting aside
the conviction and sentence recorded against the appellant-accused No.
4 for the offence under Section 376 D IPC while confirming the
conviction and sentence recorded against him for the other offences.
All the substantive sentences are directed to run concurrently.
Sentence of imprisonment already undergone by the appellants-
accused Nos. 1 and 3 to 5 shall be given set off under Section 428
Cr.P.C. Pending miscellaneous applications, if any, shall stand
dismissed in consequence.
___________________
K.SURESH REDDY, J.
_______________________
K.SREENIVASA REDDY, J.
Date: 30-09-2024,
JSK
HON'BLE SRI JUSTICE K.SURESH REDDY
AND
HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos. 66, 147, 157, 256 AND 994 OF 2017
(Common Judgment of the Division Bench delivered by
Hon'ble Sri Justice K.Suresh Reddy)
DATE: 30TH SEPTEMBER, 2024
JSK
