Mohd. Muneeruddin vs The State Of Telangana
2021 Latest Caselaw 2391 Tel

              HONOURABLE JUSTICE G.SRI DEVI

                CRIMINAL APPEAL No.379 of 2020

JUDGMENT:

This appeal is directed against the judgment of the

learned I-Additional Metropolitan Sessions Judge-cum-Special Judge

for Trial of Cases under Protection of Children from Sexual Offences

Act, 2012, Hyderabad, in S.C.PCS.No.89 of 2017, dated 23.06.2020,

whereby the appellant/accused was found guilty of the offences

punishable under Section 6 of the Protection of Children from Sexual

Offences Act, 2012 and Section 377 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.2,000/- in default, to

suffer simple imprisonment for a period of six months for the

offence punishable under Section 6 of the Protection of Children

from Sexual Offences Act, 2012 (for short "the POCSO Act") and

also sentenced to undergo rigorous imprisonment for a period of

Ten years and to pay a fine of Rs.2,000/- in default, to suffer simple

imprisonment for a period of six months for the offence punishable

under Section 377 of I.P.C. However, the appellant/accused was

found not guilty for the offence punishable under Section 506 of

I.P.C. and accordingly he was acquitted for the said offence.

The case of the prosecution, in brief, is that P.W.1 lodged a

complaint with the police stating that his son Master Shaik Tabrez

(P.W.2), aged about 12 years, studying in IV Class in Shah's

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Memorial School, Najam Nagar, Kishanbagh, Hyderabad, has

complained him on 10.11.2015 that he is suffering with pain in anus

and on enquiry, he revealed that on 09.11.2015 at about 12.00 hours

his Arabic Teacher Muneer (Accused) asked him to come to his

house for getting Arabic books during school timings and after

going to his home, he removed his clothes by threatening and

started touching his private parts and also started doing sex with

him, on that P.W.2 started shouting and on hearing the hues and

cries of P.W.2, the accused told him to wear his clothes and

thereafter dropped him at School. It is also stated in the complaint

that the school management has also revealed that previously the

accused had done this type of offence several times with others.

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

Police, registered a case in Crime No.295 of 2015 for the offences

punishable under Section 377 of I.P.C. and Sections 3 and 4 of the

Protection of Children from Sexual Offences Act, 2012 and issued

Ex.P7-F.I.R. During the course of investigation, P.W.11 examined

P.Ws.1 and 2 and recorded their statements and sent P.W.2 for

medical examination to Osmania Hospital, Hyderabad. Thereafter,

P.W.14-the Inspector of Police took up investigation on 11.11.2015;

visited the house of P.W.2; re-examined and recorded his statement;

visited the scene of offence, conducted scene observation

panchanama in the presence of P.W.8 and one Shaik Isaq (L.W.11)

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and prepared rough sketch of the scene of offence. On 12.11.2015,

P.W.14 visited Shah Memorial School, situated at Nazam Nagar and

recorded the statement of P.W.5, who is the Teacher in the same

school and who noticed the absence of P.W.2 in the class while she

was taking class; thereafter P.W.14 observed the CCTV recorded

footage inside the room of School Correspondent and collected the

same under a cover of panchanama in the presence of P.W.9 and one

Aqeel Ahmed (L.W.13) and also examined P.W.6, who assisted him

in arranging the CCTV footage of the school premises wherein he

noticed and identified that P.W.2 has been taken by the accused. On

12.11.2015, P.W.14 arrested the accused and recorded his

confessional statement in the presence of P.W.10 and one Mohd.

Aziz Khan (L.W.14). After completion of investigation and

collecting all the material papers, P.W.14 filed the charge sheet,

which was taken cognizance as S.C. PCS No.89 of 2017.

On appearance of the accused, charges under Section 6 of the

Protection of Children from Sexual Offences Act, 2012 and Sections

377 and 506 of I.P.C. were framed, read over and explained to the

accused. The plea of the accused is one of total denial.

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

15 and got marked Exs.P1 to P9 and M.O.1. After closure of

evidence, the accused was examined under Section 313 Cr.P.C., with

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reference to the incriminating circumstances appearing against him

in the evidence of the prosecution witnesses, to which he denied.

No oral or documentary evidence was adduced on behalf of the

accused.

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 him as stated supra. Challenging the same, the present

appeal is filed.

Learned Counsel for the appellant/accused would submit that

the accused is innocent of the offence and he has not committed any

offence as alleged and that there are disputes between P.W.1 and the

accused with regard to payment of amount for a plot and to cover

up the same, this false case has been foisted against the accused. She

further submits that there is no cogent age proof of the victim boy

and since no proof is filed with regard to the date of birth of the

victim boy, Ex.P2-bonafide certificate cannot be treated as a valid

proof. She also submits that P.W.2 did not disclose the incident to

anyone at school soon after the incident. She further submits that

from the evidence of P.Ws.3, 5 and 7, it is clear that the timings of

the school and Arabic classes are different and that in the cross-

examination P.W.7 stated that the victim boy goes home alone,

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whereas P.W.3 says that she used to pick up the boy from the school.

She further submits that the evidence of P.Ws.2, 3 and 4 is

contradicting with each other and that it is not clear whether the

incident was narrated at school or at home or on the way to the

home by the victim boy to his mother (P.W.3) and that the contents

of the complaint are contradicting with the version of the witnesses.

She further submits that the prosecution failed to adduce any

medical evidence in support of its case. The evidence given by

P.W.2 in the Court under Section 164 Cr.P.C. and the statement of

P.W.2 recorded by the police under Section 161 Cr.P.C. were not

similar. She also submits that in 161 Cr.P.C. statement, P.W.2 said

that "accused forcefully removed his clothes" but in the 164 Cr.P.C.

statement he said that "victim removed his clothes by his own

decision" and that in the F.I.R. it was stated that the incident has

occurred at 12.00 P.M., whereas in 161 Cr.P.C. statement, victim has

stated that the incident has occurred at 2.00 P.M. and as such there is

lot of difference in the timing of the incident, which is fatal to the

case of prosecution. She further submits that when the aforesaid

two statements were examined thoroughly, certainly a doubt would

arise as to what kind of sexual activity was actually committed by

the accused. As per Section 377 of I.P.C., it is unnatural offence,

which is different from the usual sexual offence under Section 376 of

I.P.C., whereas the Protection of Children from Sexual offence Act

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does not specifically deal with unnatural offences and, therefore,

when unnatural offence is not covered by the Protection of Children

from Sexual offence Act, punishing the accused under Section 6 of

the Protection of Children from Sexual offence Act is not proper. In

support of her contention, she relied upon the judgments of the

Apex Court Rameshwar v. The State of Rajasthan1 and The State

Govt. NCT of Delhi v. Kursheed2

On the other hand, the learned Assistant Public Prosecutor

appearing for the respondent/complainant submitted that there is

no substance in the defence of the accused. There is ample evidence

of the victim boy (P.W.2), regarding the act done by the accused and

the said evidence is corroborated by the evidence of the doctor

(P.W.12), P.W.4, who is the friend of the victim boy and P.Ws.5 and

6, who are the Teachers of the victim boy. According to the learned

Assistant Public Prosecutor, the prosecution has proved the offences

against the accused beyond all reasonable doubt. He submitted that

the inconsistencies pointed out by the learned Counsel for the

accused are insignificant and they are not sufficient to reject the

direct evidence of the victim boy, his friend and his Teacher and the

medical evidence coupled with the CCTV footage. Therefore, he

submitted that the conviction and sentence recorded against the

1952 SCR 377

Crl.A.No.510 of 2018, Delhi High Court

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accused is proper and that there is no merit in the appeal and prayed

to dismiss the Criminal Appeal.

I have carefully considered the submissions made by the

learned Counsel for the accused and the learned Assistant Public

Prosecutor.

Now, the question that arises for consideration is "whether the

impugned conviction and sentence imposed against the

appellant/accused calls for interference by this Court or not?

P.Ws.1 and 3 are the parents of P.W.2. P.W.2 is the victim boy.

P.W.4 is the classmate of P.W.2. P.Ws.5 and 6 are the Teachers of

P.W.2. P.W.7 is the Head Mistress, who issued Bonafide and

Conduct Certificate of P.W.2. P.W.8 is the panch witness for scene of

offence. P.W.9 is the panch witness for seizure of CCTV footage.

P.W.10 is the panch witness for confession-cum-seizure

panchanama. P.Ws.11, 14 and 15 are the Investigating Officers and

P.Ws.12 and 13 are the doctors.

With regard to the offences under Section 377 of I.P.C. and

Section 6 of the POCSO Act alleged against the accused, it is

necessary to consider the age of the victim boy on the date of

incident. The alleged incident took place on 09.11.2015. The

evidence of the victim boy (P.W.2) shows that he is studying 4th

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standard. The evidence of P.W.7 shows that she issued the Bonafide

and conduct certificate of P.W.2, which was marked as Ex.P2. As

per the said certificate, the date of Birth of the victim boy is

30.09.2002. Considering the said birth date and the date of incident

i.e., 09.11.2015, it can be said that the age of the victim boy was 13

years and one month. Similarly, the evidence of P.W.1, who is the

father of the victim boy, also shows that the date of birth of the

victim boy is 30.09.2002. The accused has not seriously disputed the

fact that the age of the victim boy was not 13 years at the time of

incident. Thus, on the basis of above evidence, I hold that the

prosecution has proved that the age of the victim boy was 13 years

as on the date of incident and as such as the victim boy was below

eighteen years of age, he was a child within the meaning of Section 2

(d) of the POCSO Act.

With regard to the unnatural offence alleged against the

accused under Section 377 of I.P.C. and aggravated penetrative

sexual assault under Section 6 of the POCSO Act, the prosecution

has mainly relied upon the evidence of P.Ws.1 to 6. As regards the

evidence of the victim boy (P.W.2) is concerned, it has come in his

evidence that on the date of incident he went to school at around

9.00 A.M., and during lunch time while he was studying, accused

called him to office room and from there he took him on his

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motorcycle to his house on the pretext of collecting books; that the

accused took him to the bed-room, talked to him for five minutes

and thereafter the accused removed his clothes and also the clothes

of P.W.2 and then the accused asked P.W.2 to put his penis in his

mouth and thereafter, the accused committed penetrative sexual

assault on P.W.2 from his back and when P.W.2 raised cries due to

pain, the accused made him to wear his clothes and took him to the

school and left him there. P.W.2 further deposed that when he was

crying, his friends P.W.4 and another asked him as to why he was

crying and on that he disclosed the entire incident; that after school

hours, P.W.2 informed the same to his mother and thereafter, they

came to home and informed the same to his father and that his

father lodged the complaint and the police sent him to hospital for

medical examination. In the cross-examination, P,W.2 denied a

suggestion that his father has to give some amount relating to a plot

to the accused and that in order to avoid the same, a false case was

foisted against the accused. Thus, nothing is elicited in favour of the

accused in the cross-examination of the victim boy. Therefore, there

is no reason to disbelieve the evidence of the victim boy.

The evidence of P.W.4, who is a friend of the victim boy, is

that on the date of incident during lunch time around 12.30 noon

while he was going for hand wash, P.W.2 was standing outside the

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class and on enquiry he told him that he was going along with the

accused to get some books from the house of accused; that after

lunch, 6th period resumed and at that time his teacher asked about

P.W.2 as his bag was there in the class room, he informed her that

P.W.2 went along with the accused for getting books. P.W.4 further

deposed that P.W.2 came back to school at the end of 7th period and

he was weeping and on his enquiry, P.W.2 disclosed that the

accused took him to his house, removed his clothes and also the

clothes of the accused and slept on him. In the cross-examination, he

denied the suggestion that P.W.2 did not disclose anything to him

against the accused and he and P.W.2 are not friends and that he is

deposing falsehood at the instance of police. Thus, nothing is found

in favour of the accused in the cross-examination of P.W.4.

Therefore, there is no reason to disbelieve the evidence of P.W.4, to

whom the victim boy had disclosed the incident immediately after

occurrence of the incident.

The evidence of P.W.5, who is the class teacher of P.W.2,

disclosed that on 09.11.2015, when she was taking class, she noticed

one school bag in the chair and when she enquired about the said

bag, the students of the class informed her that the bag belongs to

P.W.2 and further when she asked as to where P.W.2 was, the

students replied that P.W.2 went along with the accused to bring the

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books and later, she came to know that the accused has committed

sexual assault on P.W.2.

The evidence of P.W.6, who is also one of the teachers in the

school of P.W.2, discloses that on 12.11.2015, the Inspector of Police,

Bahadurpura, Police Station came to the school and asked him to

show the CCTV footages of their school fixed in the ground floor

and on the first floor for the date 09.11.2015 from 10.00 A.M. to 4.00

P.M., accordingly, he checked the CCTV footages and noticed that

the accused was taking P.W.2, along with him, and again the

accused returning to the school; that he has also noticed in the CCTV

footage of the 1st floor that P.W.2 was also coming into the School.

P.W.6 further deposed that he noticed in the CCTV footage that the

victim boy was going out of the school at 12.54 P.M. on 09.11.2015

and again he is returning to the class room in the afternoon at 2.36

P.M. and the accused returning to the school at 2.40 P.M.

From the evidence of the victim boy (P.W.2), it is clear that on

the date of incident the accused had taken him to his house and

there the accused, after removing his clothes and the clothes of the

victim boy, committed penetrative sexual assault on P.W.2 from his

back. The evidence of the victim boy is very well corroborated by the

evidence of P.W.4, to whom the victim boy disclosed the incident

after the incident took place. Similarly, the parents of the victim boy

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(P.Ws.1 and 3) have corroborated the evidence of the victim boy

regarding the act done by the accused. It was quite natural for the

victim boy to disclose the incident to his parents.

Admittedly, P.Ws.1 and 3, are parents of the victim boy and

their evidence as regards the incident is quite natural and cogent.

Therefore, the submission of the learned Counsel for the accused

that their evidence cannot be believed simply because they are blood

relatives of the victim boy cannot be accepted.

The contention of the learned Counsel for the appellant/

accused is that there are contradictions and additions in the

statements of the victim boy. As seen from the record, the additions,

if any, in the statement of the victim boy, by no stretch of

imagination, can be described as improvements, which shake his

credibility and his statement is doubtful. The additions are mere

elaborations which the witness narrated before the Court and were

omitted in his narration before the Magistrate or before the Police

Officer, while recording his statements under Sections 164 and 161 of

Cr.P.C. The statement of victim boy recorded before the Court,

wherein it is observed that his examination-in-chief was consistent

with his version before the Magistrate under Section 164 Cr.P.C.

However, P.W.2 has categorically denied the suggestion that his

father has to give some amount to the accused and that in order to

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avoid the payment of the amount relating to a plot, the present false

case has been foisted against the accused.

Further contention of the learned Counsel for the appellant/

accused is that there is no medical evidence to support the version of

P.W.2. Admittedly, as per Ex.P8-injury certificate, there were no

injuries found on the body parts of the victim boy. It is clear from

the evidence of P.W.2/victim boy that the accused removed his

clothes and also the clothes of the victim boy and committed

penetrative sexual assault from his back and when the victim boy

raised hue and cry due to pain, the accused left him. As such,

relying on the judgment of the Apex Court in Narayanamma v.

State of Karnataka3, the trial Court has rightly held that mere

absence of external injuries on the private parts of the victim boy

does not negate the version of the victim boy.

For all the reasons discussed above, on the basis of evidence of

P.Ws.1 to 6 coupled with CCTV footages, this Court is of the view

that the prosecution has proved the offences under Section 377 of

I.P.C. and Section 6 of POCSO Act, beyond all reasonable doubt.

However, considering the punishment provided for both these

offences and the fact that the minimum punishment provided for the

offence under Section 6 of the POCSO Act and Section 377 of IPC is

(1994) 5 SCC 728

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10 years, the trial Court has rightly imposed sentence on the

accused, but however, the sentence imposed on both the counts shall

run concurrently. I see no reason or justification to interfere with the

findings of the trial Court. Thus, the appeal is liable to be dismissed.

Accordingly, the Criminal Appeal is dismissed, confirming

the conviction and sentence imposed against the appellant/accused

by the trial Court, but however, the sentence imposed on both the

counts shall run concurrently.

_____________________ JUSTICE G.SRI DEVI

17.08.2021 Gsn/gkv