Telangana High Court

Sayeed Aleem vs The State Of Telangana on 17 August, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G.SRI DEVI

               CRIMINAL APPEAL No.1026 of 2019

JUDGMENT:

This appeal is directed against the judgment of the

learned Special Sessions Judge for Trial of Cases under Protection of

Children from Sexual Offences Act-cum-I-Additional Sessions

Judge, Adilabad, in Spl.S.C.No.104 of 2016, dated 28.10.2019,

whereby the appellant/accused was found guilty of the offences

punishable under Section 5 (m) read with Section 6 of the Protection

of Children from Sexual Offences Act, 2012 and Section 376 (2) (i) of

I.P.C. and accordingly convicted and sentenced to undergo rigorous

imprisonment for a period of Ten years and to pay a fine of

Rs.1,000/-, in default, to suffer simple imprisonment for a period of

one month for the offence punishable under Section 5 (m) read with

Section 6 of the Protection of Children from Sexual Offences Act,

2012 (for short "the POCSO Act"). No separate sentence is imposed

for the offence punishable under Section 376 of I.P.C. in view of

Section 42 of the POCSO Act, which provides for alternate

punishment.

2. The case of the prosecution, in brief, is that on 05.08.2016

P.W.1 lodged a complaint with the police stating that on 05.08.2016

at about 5.00 P.M., while his second daughter i.e., victim girl, aged

about 12 years, was playing with cycle in the surroundings of his

house, accused stopped the victim girl by offering to give playing

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stickers and money and accordingly the victim went to the accused,

who took her into an auto, which is in front of his house, hugged her

by pressing her breast and from there he dragged her into his house,

closed the doors, removed her pant, laid down her on the ground

and raped her forcibly by pressing her breast and thereafter the

victim girl went to her house and informed the incident to her father

(P.W.1). Basing on the said complaint (Ex.P1), P.W.11-Assistant Sub

Inspector of Police, Adilabad Rural, registered a case in Crime

No.146 of 2016 for the offences punishable under Section 354-B of

I.P.C. and Section 12 of the POCSO Act, examined and recorded the

statement of P.W.1. Thereafter, the section of law was altered to

Section 376 (2) (i) of I.P.C. and Section 4 of the POCSO Act. The

statement of P.W.2 was recorded by P.W.10-Sub Inspector of Police,

which was videographed by P.W.4. On receipt of Ex.P11-F.I.R,

P.W.12-Inspector of Police, Adilabad Rural, took up the

investigation, recorded the statements of the witnesses, visited the

scene of offence, prepared Crime Details Form and drew its rough

sketch in the presence of P.W.6 and another. Ex.P4 is the C.D.F.

along with rough sketch; thereafter recorded the statements of

P.Ws.4 to 10; collected Ex.P3-Bonafide certificate of the victim girl

from P.W.5; sent P.W.2/victim girl for medical examination; arrested

the accused, recorded the confessional statement of the accused in

the presence of P.W.7 and another and seized one cut-drawer from

the possession of the accused and sent requisition for conducting

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potency test of the accused and collected the potency certificate; got

recorded the statement of P.W.2 under Section 164 of Cr.P.C. After

completion of investigation and collecting all the material papers, he

filed a charge sheet, which was taken cognizance as Spl.S.C.No.104

of 2016.

3. On appearance of the accused, charges under Section 376 (2)

(i) of I.P.C. and Section 5 (m) read with Section 6 of the POCSO Act,

were framed against the accused, read over and explained to him in

Telugu, for which he pleaded not guilty and claimed to be tried.

4. To substantiate its case, the prosecution examined P.Ws.1 to

12 and got marked Exs.P1 to P12 and M.Os.1 and 2. After closure of

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.

Neither oral nor documentary evidence was adduced on behalf of

the accused.

5. After considering the oral and documentary evidence on

record, the learned trial Judge found the accused guilty of the

offences with which he was charged and accordingly convicted and

sentenced the accused as stated supra. Challenging the same, the

present appeal is filed.

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6. Learned Counsel for the appellant/accused would submit that

the impugned judgment is contrary to law, weight of evidence and

probabilities of the case; the trial Judge erred in placing reliance on

the highly interested and discrepant testimony of P.Ws.1 and 2 and

the Investigating Officer; the learned Judge ought to have seen that

even P.W.1, who is the father of the victim/P.W.2, did not properly

support the case of the prosecution and his evidence was based on

hearsay, which is inadmissible in evidence; the Court below failed to

take note of admission of P.W.1 that the victim girl is mentally

retarded since her childhood and she is suffering partially unsound

mind; the Court below ought to have considered the submission of

the accused that the victim is tutored to support the case of the

prosecution, as such she is able to give minute to minute narration of

the alleged incident and that the Court below ought to have seen

that a fair trial is conducted and the accused, who was implicated by

P.W.1 and others, is acquitted from the false charge of rape; the

Court below failed to appreciate the evidence of P.W.3, who is

alleged to be an eyewitness, and who did not support the case of the

prosecution and that the Court below ought to have weighed her

evidence and come to conclusion that she was forced by her parents

to implicate the appellant in the false case. It is also submitted that

the Court below ought to have seen that all the prosecution

witnesses have given inconsistent versions about the occurrence of

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the incident and ought to have given benefit of doubt to the accused.

It is further submitted that the Court below ought to have seen that

there is no consistency in the evidence of P.Ws.6 and 7, who are

panch witnesses for Crime Detail Form panchanama and confession-

cum-seizure panchanama and they did not support the case of the

prosecution; the Court below ought to have seen that P.W.7 turned

hostile to the case of the prosecution and held that the police took his

signatures on some white papers. It is also submitted that the trial

Court failed to appreciate the evidence of the doctor, which is

inconsistent with the version of P.Ws.1 and 2; the Court below ought

to have seen that during the evidence, P.W.2 did not depose that the

accused penetrated his penis into her private parts, but the doctor

i.e., P.W.8 has given inconsistent version saying that she found

redness and congestion over labia minora and further, P.W.8 gave

inconsistent version that she did not find any bleeding from the

private part of the victim and, therefore, the Court below failed to

appreciate the contradictions in the evidence of P.W.8 and failed to

come to proper conclusion and as such in the absence of proof of

penetration of penis into the private part of the victim, the

conviction and sentence imposed against the accused is totally

illegal and, therefore, the same is liable to be set aside.

7. Per contra, the learned Assistant Public Prosecutor would

submit that as per Ex.P3-Bonafide Certificate, it has been clearly

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established that P.W.2 is less than 18 years of age as on the date of

occurrence. He further submitted that the victim girl has clearly

narrated the entire events happened and her evidence is supported

by P.W.1, P.W.3 and P.W.8-Doctor. He also submits that a

combined reading of the evidence of the victim girl as well as the

evidence of the doctor amply proves that the victim was subjected to

sexual assault by the accused. He further submits that P.W.9-

Doctor, who issued Potency certificate, stated that the accused is

potent. He further submits that the trial Court has rightly

appreciated the prosecution evidence and the material available on

record and, therefore, the conviction and sentence passed by the trial

Court is justified and is not liable to be set aside.

8. In order to prove its case, the prosecution has examined as

many as 12 witnesses. P.W.1 is the complainant and father of the

victim girl. P.W.2 is the victim girl. P.W.3 is the eyewitness to the

incident. P.W.4 is the photographer, who videographed the

statement of P.W.2 recorded by P.W.10. P.W.5 is the Headmaster,

who issued Ex.P3-bonafide certificate of the victim girl. P.W.6 is the

panch witness for Ex.P4-Crime Details Form. P.W.7 is the panch

witness for confessional-cum-seizure panchanama of the accused.

P.W.8 is the doctor, who examined the victim girl and issued Exs.P6

to P8. P.W.9 is another doctor, who examined and issued Ex.P9-Age

determination certificate and also Ex.P10-Potency Certificate of the

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accused. P.W.10 is the woman Sub Inspector of Police, who recorded

the statement of P.W.2 (victim girl). P.Ws.11 and 12 are the

Investigating Officers.

9. I have considered rival submissions of the learned Counsel for

the appellant/accused, learned Assistant Public Prosecutor

appearing for the respondent and gone through the entire material

available on record.

10. To hold that the accused has committed the offence under

Section 376 (2) (i) of the I.P.C, the prosecution has to establish that

the accused has committed rape on the victim when she is under 16

years of age. As per definition of rape under Section 375 of the I.P.C,

a man is said to commit rape if he (a) penetrates his penis, to any

extent, into the vagina, mouth, urethra or anus of a woman or makes

her to do so with him or any other person with or without her

consent, when she is under eighteen years of age. For proving the

offence under Section 5 (m) of the POCSO Act, the prosecution has

to establish that the accused has committed penetrative sexual

assault on the child below the age of twelve years. Thus,

considering the ingredients of offences under Sections 376 (2)(i) of

the I.P.C and under Section 5 (m) of the POCSO Act, the age of the

victim at the material time of incident is material.

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11. To prove the age of the victim girl, the prosecution has relied

upon the evidence of P.W.5-Head Master, MPPS, New Housing

Board Colony, Adilabad, who issued Ex.P3-Bonafide certificate of

the victim, and the evidence of P.W.9-Doctor, who issued Ex.P9-Age

Determination Certificate. The evidence of P.W.5 is that the victim

girl has studied in the School from 1st class to 4th class and he issued

Ex.P3-Bonafide certificate of the victim girl basing on the school

admission register on 24.08.2016 and as per the said record, the date

of birth of the victim girl is 06.06.2007. The date of occurrence is

05.08.2016 and, therefore, at the time of occurrence, the age of the

victim girl was only 9 years. However, as per Ex.P9-Age

Determination Certificate issued by P.W.9, the age of the victim girl

was between 12 to 13 years at the time of occurrence. Therefore, the

prosecution has proved that at the time of incident, the age of the

victim girl was below 12 years and she is a child within the meaning

of Section 2 (1) (d) of the POCSO Act.

12. The case of the prosecution is that the accused has committed

penetrative sexual assault on the minor girl on 05.08.2016 and as

such he is liable for punishment for the offences punishable under

Section 376 (2) (i) of I.P.C. and Section 5 (m) read with Section 6 of

the POCSO Act. In order to prove its case, the prosecution has relied

upon the evidence of P.Ws.1 to 3 and P.W.8-Doctor. The evidence of

the victim girl (P.W.2) is that on the date of incident while she was

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playing with bicycle in front of the house of the accused, the accused

took her inside the house promising to give a sticker and money and

disrobed her, pressed her chest, removed her pant, fell on her,

hugged her tightly and touched her private part with his penis.

P.W.2 further stated that she informed the same to her father-P.W.1.

Nothing was elicited from the cross-examination of P.W.2 to

discredit her evidence. The evidence of P.W.2 is corroborated by

the evidence of P.W.3, who is the eyewitness to the incident. In her

evidence, P.W.3 deposed that on the date of incident while P.W.2

was playing in open ground in front of her house, the accused came

there, took P.W.2 into the bathroom of his house. P.W.3 also

testified that she informed the fact of accused taking the victim girl

into his bath room to P.W.1, who is the father of the victim girl, and

thereafter P.W.1 and his family members went into the house of the

accused and took P.W.2 from the house of accused and that there

was a quarrel took place in between family members of accused and

P.W.2. Though P.W.3 turned hostile, her evidence is believable to

the extent of the accused taking the victim girl to his bath room.

13. P.W.1, who is the father of the victim girl, deposed that in the

month of August, 2016 at about 5.00 P.M., when he returned home,

the victim girl (P.W.2) complained pain in the chest and on enquiry

she disclosed that while she was playing with bicycle in front of the

house of the accused, the accused took her inside the house

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promising to give a sticker and money, disrobed her, pressed her

chest, removed her pant and fell on her and hugged her tightly.

Nothing was elicited from the cross-examination of P.W.1 so as to

discredit his evidence.

14. P.W.8-Doctor, who examined the victim girl, deposed that on

06.08.2016 she examined the victim girl (P.W.2) and on local

examination there was redness and congestion over labia minora

and as per vaginal examination, introitus admitting one finger and

no bleeding. She further deposed that she preserved vaginal smear

and pubic hair and sent the same for F.S.L. and after receipt of F.S.L.

report, she issued final opinion stating that there was redness and

congestion over labia minora, introitus admitting one finger, hymen

not intact. Ex.P6 is the Clinical Examination Report, Ex.P7 is the

F.S.L. Report and Ex.P8 is the Final Opinion. On the basis of

evidence of P.W.2-victim, P.W.3-eyewitness, and P.W.8-Doctor and

also Ex.P8-Final Opinion, the trial Court has rightly held that the

accused has committed penetrative sexual assault on the victim girl,

who is a child below 12 years of age.

15. From the oral and documentary evidence, the prosecution has

proved that the accused had committed penetrative sexual assault

on the victim girl, and therefore, the accused has committed the

offences punishable under Section 376 (2) (i) of I.P.C. and Section 5

(m) read with Section 6 of the POCSO Act. Though there are some

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minor contradictions in the evidence of the prosecution witnesses,

such contradictions are not material contradictions, which will go to

the root of the case of the prosecution. This Court does not find any

reason to discard the evidence of the victim girl (P.W.2). The trial

Court has appreciated the entire oral and documentary evidence in a

proper perspective and has rightly found the guilt of the accused for

the offences as stated supra.

16. It is settled principle of law that no person can be punished

twice for one offence. Looking into the gravity of nature of offence of

sexual assault, particularly, rape on the victim below the age of 18

years, Section 42 and 42-A of POCSO Act, 2012 were incorporated to

deal with such peculiar situation, which read as under:-

"Section 42: Alternative Punishment:- Where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or Section 509 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

Section 42A: Act not in derogation of any other law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."

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17. From the aforesaid Section, it is clear that if offence of sexual

assault is punishable in relevant provision of POCSO Act and also in

relevant provision of I.P.C., like 376 I.P.C., the trial Court is bound to

punish the accused either in the relevant provision of POCSO Act, or

under I.P.C. which is greater in degree. In view of Section 42 of the

POCSO Act, no separate sentence was imposed by the trial Court for

the offence punishable under Section 376 (2) (i) of I.P.C.

18. For the aforesaid reasons, this Court has no hesitation to hold

that the judgment passed by the trial Court, is just and proper and,

therefore, it does not require any interference by this Court.

19. Accordingly, this Criminal Appeal is dismissed confirming

the conviction and sentence imposed against the appellant/accused

by the learned Special Sessions Judge for Trial of Cases under

Protection of Children from Sexual Offences Act-cum-I-Additional

Sessions Judge, Adilabad, in Spl.S.C.No.104 of 2016, dated

28.10.2019.

20. Consequently, miscellaneous petitions, if any, pending shall

stand closed.

_____________________ JUSTICE G.SRI DEVI