Mr.Mohd Nayeem vs The State Of Telangana
2022 Latest Caselaw 2938 Tel

        HONOURABLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No. 244 of 2020


JUDGMENT:

1. The present appeal is filed by the appellant/accused

questioning his conviction for the offences punishable under

Sections 9(m) r/w Section 10 of the Protection of Children

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

vide judgment dated 10.02.2020 in SCPCS No.110/2019 by

the I Additional Metropolitan Sessions Judge-cum-Special

Judge for trial of Cases under Protection of Children from

Sexual Offences Act, 2012 (for short 'Sessions Judge') and

sentenced to undergo Rigorous Imprisonment for a period of

seven years and to pay a fine of Rs.1,000/- and in default of

payment of fine amount, to undergo Simple Imprisonment for

a period of three months. Further sentenced to undergo

Rigorous Imprisonment for a period of five years under section

354 of IPC and to pay fine of Rs.1,000/- and in default of

payment of fine amount, to undergo Simple Imprisonment for

a period of three months.

2. Briefly, the case of the prosecution is that the Appellant

is a driver and used to drop P.W.2 (victim girl) and pick up her

from the school. P.W.2 was studying third class when the

incident occurred. On 29.09.2018, in the evening hours at

4.30 p.m, when PW1-father of P.W.2 was in the house, she

entered the house and complained to her father that the

appellant was touching her private parts and made to sit on

the lap of the accused. Further, the accused threatened not to

inform the said acts to anyone. For the said reason, P.W.1

lodged a complaint Ex.P1 and thereafter, the victim girl was

sent to the hospital for the purpose of examination.

3. P.W.6, Investigating Officer, after registration of crime,

also sent P.W.2/victim girl to Bharosa Centre, where she was

examined. On the basis of the complaint, crime was registered

for the offence under Sections 509 of IPC and under Sections 9

r/w 10 and 12 of POCSO Act.

4. After completion of investigation, charge sheet was filed

and charges were framed under Section 9(m) r/w 10 of the

POCSO Act, 2012 and also under Section 354 of IPC.

5. Learned counsel for the appellant arguing his case

would submit that; i) though P.W.1 did not know Telugu, the

said complaint is made in Telugu; ii) there is any amount of

variance in between the contents of the FIR and the evidence

of P.Ws.1 and 2, for which reason, the prosecution case has to

be viewed with suspicion iii) Though as per the evidence of

P.Ws.1 and 2, they stated that the accused placed his hands

on the private parts of P.W.2, however, the complaint states

that the accused asked the victim to hold his private part, the

said contradiction has to be viewed seriously; iv) the other

students travelling in the auto were not examined and it is

highly improbable that the appellant would indulge in such

acts in the presence of other students,, who were in the auto;

v) For the reason of there being many kids in the auto, it is

probable that the accused might have asked P.W.2 and others

to sit along with him in the front seat and for the said reason,

it cannot be stated that the appellant had indulged in any acts

attracting penal consequences under POCSO Act.

6. On the other hand, learned Assistant Public Prosecutor

submits that the evidence of P.Ws.1 and 2 is very clear that

the appellant had in fact indulged in such acts by touching

the private parts of the victim girl and there is no reason as to

why the child of seven years would make any false allegations

against the appellant. Further, the victim girl/P.W.2 had

withstood the cross-examination and affirmed that it was the

accused who had done such acts. For the said reason, the

conviction recorded by the trial Court cannot be interfered

with and should be confirmed.

7. The evidence of P.W.2/victim girl is as follows:

"While I was in 3rd class, Nayeem Uncle/Accused used to drop me at home from school everyday. On 29.09.2018 while Nayeem Uncle dropping me at home in the auto he touched my private parts (Peshap ki Jaga) and on that I went crying to my father and informed him the matter and he informed the matter to police. Police examined me and recorded my statement. Police referred me to hospital. My statement was also recorded by a Judge earlier. My date f birth is 11.05.2010."

8. There is no doubt with respect to the evidence of victim

girl being correct. There is no reason, as stated by the learned

Assistant Public Prosecutor, for a girl of seven years of age to

falsely implicate the present appellant. However, as seen from

the evidence of P.Ws.1 and 2, it is alleged that the appellant

had touched the private parts of P.W.2, for which reason, the

acts of the accused/appellant amount to sexual assault as per

Section 7 of the POCSO Act. For the sake of convenience the

same is extracted hereunder:

"7. Sexual assault:-

Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

9. As seen from the provision under Section 7 of the POCSO

Act, the act of the appellant touching private parts of the

victim girl/P.W.2 would amount to sexual assault as defined

under Section 7 of the POCSO Act and punishable under

Section 8 of the said Act and in case of victim being less than

12 years, under section 10. The contradictions and

inconsistencies brought to the notice of this Court by the

learned counsel for the appellant are trivial and

inconsequential and have to be ignored. The said

discrepancies and variations have no effect on the case of the

prosecution. They are no way helpful for the reason that such

inconsistencies or discrepancies are bound to occur during

trial and such trivial issues cannot be made basis to acquit

the accused/appellant when the evidence is clear and

believable and there is no ambiguity. Counsel argued that if

allegation of touching the private parts of the victim girl is

believed, conviction should be under Section 8 of the POCSO

Act and not under Section 10 of the said Act. However

Section 9(m) reads as follows:

"9. Aggravated sexual assault:-

(a).......

(m) whoever commits sexual assault on a child below twelve years."

10. In the said circumstances, the enactment makes sexual

assault defined under section 7 of the Act if committed made

of a child below 12 years, it amounts to aggravated sexual

assault, for which reason, the finding of the trial court cannot

be interfered with. However, sentence of imprisonment is

reduced to 5 years under Section 10 of the POCSO Act.

11. Since the appellant is convicted and sentenced to

undergo R.I for a period of five years under Section 10 of the

POCSO Act, no separate sentence under Section 354 of IPC

need to be imposed.

12. For the aforementioned reasons the appeal fails and

accordingly dismissed, except reduction of sentence to five

years. As a sequel thereto, miscellaneous applications, if any,

shall stand closed.

________________

K.SURENDER, J Date: 21.6.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No.244 OF 2020

Date:21.06.2022

kvs