Bosaboina Ashok vs The State Of Telangana
2023 Latest Caselaw 4072 Tel

         THE HON'BLE SMT JUSTICE K. SUJANA

            CRIMINAL APPEAL No.115 of 2020
JUDGMENT:

Aggrieved by the Judgment dated 05.02.2020 passed by the

learned I Additional Metropolitan Sessions Judge-cum-Special

Judge for trial of Cases under Protection of Children from Sexual

Offences Act, Hyderabad in S.C.P.C.S.No.30 of 2019, the present

Criminal Appeal is filed.

2. Heard Sri Apurva M Gokhale, learned counsel appearing on

behalf of the appellant as well as Smt. Shalini Sakena, learned

Assistant Public Prosecutor appearing on behalf of the respondent.

3. The trial Court convicted and sentenced the

appellant/accused for the offence punishable under Sections 354-

A and 506 of the Indian Penal Code, 1860 (for short 'the IPC') and

Section 9(m) read with Section 10 of the Protection of Children

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

was imposed seven years rigorous imprisonment and to pay fine of

Rs.1,000/- and in default of payment of fine amount, he has to

undergo simple imprisonment for a period of three (3) months for

the offence punishable under Section 506 of IPC.

4. Aggrieved by the said conviction and sentence, the present

appeal is preferred by the appellant stating that the Judgment of

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the learned Sessions Judge is contrary to the evidence on record

and the learned Sessions Judge erred in convicting the appellant

under Section 9(m) read with Section 10 of the POCSO Act even

though there are several discrepancies in the statement of the

witnesses. The learned Sessions Judge erred relying upon the

evidence of the victim where it is evident that the witness/P.W.1

has been tutored which is evident from her admission and

demeanour. The opinion of the doctor is also not conclusive to

state that there is possibility of sexual assault, as such, the same

cannot be read against the accused. The case of the prosecution

itself was highly improbable. Therefore, prayed the Court to set

aside the judgment.

5. Learned counsel for the appellant submitted that the

evidence on record is not sufficient to prove the guilt of the

accused. The scene of offence itself is not proper and there is delay

of registering the case and P.W.3 is the interested witness. The

statement of the victim was recorded after arrest of the accused,

and thereafter, registered the case which is against the settled

principles of law. There are several contradictions in the evidence

of the victim and she was examined two (2) months after the

incident. Therefore, there are several lapses in prosecution case.

As such, he prayed the Court to set aside the impugned judgment

and acquit the appellant by allowing the appeal.

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6. On the other hand, learned Assistant Public Prosecutor

would submit that the prosecution proved the evidence beyond the

reasonable doubt. The offence alleged is heinous in nature and

victim is of 5 ½ years old girl and the statement of the victim is

recorded after two (2) months of the incident and therefore, minor

discrepancies cannot be taken into consideration in these type of

cases. The evidence on record is sufficient to prove the guilt of the

accused. Therefore, there are no infirmities in the judgment

passed by the trial Court and there are no merits in the appeal and

the same is liable to be dismissed.

7. The facts of the case are that on 02.04.2018 at about

6:15PM., P.W.1 lodged a complaint to the police stating that she is

having a son aged about 10 years and a daughter, who is the

victim, aged about 5 ½ years studying first class and in their

opposite house, one person by name Ashok/accused is staying

since 10 years with his wife Asmitha, who is a teacher and that her

daughter/PW2 is going to tuition since three (3) years prior to the

incident and on 02.04.2018 at about 02:00 P.M., when her

daughter went to a shop near their house, the said Ashok/accused

called her daughter on the pretext of providing her food and took

her into his bed room and made her to sit on his thighs, removed

her underwear and touched her private parts with his right hand

index finger and rubbed for two minutes. Due to which, her

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daughter sustained severe pain and asked him to leave her. For

which, he threatened her not to tell her parents and sent her away.

At about 2:15 P.M., her daughter/P.W.2 came home and informed

her/P.W.1 about pain in her private parts and on enquiry, P.W.2

revealed the above facts. Hence, she requested to take necessary

action against the said Ashok/accused as per law.

8. Basing on the above complaint, a case in Crime No.86 of

2018 was registered by the concerned police and charge sheet was

filed against the accused for the offence punishable under Sections

354, 354-A and 506 of the IPC and Section 9 read with Section 10

of the POCSO Act.

9. To prove the case of the prosecution, they examined P.Ws.1

to 11 and got marked Exs.P1 to P9. Basing on the evidence on

record and after hearing both sides, the learned Sessions Judge

convicted the appellant as stated supra.

10. Now the point for consideration is whether the judgment of

trial Court needs any interference?

11. To prove the offence, the evidence on record is P.W.1 the

complainant and mother of P.W.2 and she deposed about the

incident and gave complaint to the police. P.W.2 is the crucial

witness. She is the victim and her evidence is that she knows the

accused and she used to go to the house of the accused to take

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tuition from the wife of the accused. While she was in first class,

on one day, in the afternoon hours, she went to shop which was

opposite to their house to purchase polo rings and at that time, the

accused called her to his house and she returned home after 15

minutes. When the mother noticed that the victim girl is nervous

and she enquired, she did not disclose anything and told that the

accused asked her not to disclose to anyone and on her further

enquiry, the victim disclosed to her mother that the accused took

her into his house, bolted the door, made her to sit on his lap and

put his finger in her private part, on that she informed the matter

to her family members and thereafter, she lodged a complaint.

Victim girl also deposed the same.

12. P.W.3 is the father of the victim girl and he deposed on the

same lines of P.Ws.1 and 2. He further deposed that he received a

phone call on the date of incident from P.W.1 asking him to come

home immediately and when he came to his house, he came to

know about the incident. In cross examination of P.W.3, he denied

the suggestion that no incident was occurred as alleged and no

sexual assault was happened. He also denied that false case filed

against the accused due to the disputes with his family with regard

to the tuition fee.

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13. P.W.4 is the circumstantial witness. She deposed that on

the date of incident, she saw the victim girl going to the house of

the accused and after few minutes, she saw the victim girl coming

out of the house of the accused. After sometime, she heard cries of

P.W.1 and on enquiry she informed that the accused misbehaved

with her daughter. In cross-examination, P.W.4 deposed that she

borrowed Rs.10,000/- from the wife of the accused through a

friend and there were disputes with the family of the accused in

this regard. She also denied that the house of the accused is not

visible from her house.

14. P.Ws.5 and 8 are the panch witnesses for scene of offence

conducted by the police. P.W.6 is the lady Police Constable, who

recorded the statement of the P.W.1 and handed over the same to

P.W.11. P.W.7 recorded the statement of victim girl at Barosa

centre. P.W.9 is the Medical Officer who examined the victim girl

on 03.05.2018 and gave report that there is a possibility of sexual

assault. P.W.10 is the Investigating Officer who deposed about the

investigation done by him. P.W.11 took over the investigation from

P.W.10 and filed charge sheet. Basing on the above evidence,

accused was convicted.

15. The contention of the learned counsel for the appellant is

that there is a delay in lodging the complaint and issuance of FIR.

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As seen from the record, the incident took place at about 02:00

P.M. and complaint was lodged at about 06:15 P.M., there is a four

hours delay. Admittedly, the police station is within 200 meters

from the incident. This delay can be taken into consideration in

any other offence but this is an offence against the girl child who is

aged about 5 ½ years and this offence is heinous in nature.

16. On the other hand, the learned Assistant Public Prosecutor

submits that the delay of four hours is not fatal to the prosecution

case. It affects the honor and career of the child. Therefore, the

delay in four hours cannot be taken into consideration when the

evidence is laid in these types of offences.

17. Secondly, the contention of the learned counsel for the

appellant is that according to the victim, the scene of offence is a

Pan shop, whereas Investigating Officer deposed that it is a Kirana

shop. Though there are discrepancies with regard to the shop, the

victim girl went to purchase polo rings in the shop opposite to her

house and such discrepancies cannot be taken into consideration.

He further submitted that the owner of the shop was not examined.

If the offence is committed by the accused and the victim told the

same to her mother, in these types of offences, there may not be

eye witness to prove the offence. As such, there is no force in the

contention of the appellant. The further contention of the learned

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counsel for the appellant is that the evidence on record is

demeanor of victim, which itself shows that the victim is tutored.

18. Going through the evidence of P.W.2, who is the victim girl,

she identified the accused through video linkage and she deposed

that she is going to the accused house to take tuitions with the

wife of accused. The tuition teacher name is Asmitha. At the time

of incident, she was in first class and she went to purchase polo

rings to a shop which was opposite to their house. The learned

Sessions Judge recorded the demeanor stating that the victim girl

is silent for a long time and appears to be little fear and confusion

on repeatedly asking her as to if anything happened, then she gave

the answer which itself shows that the girl is not tutored. If really

she is tutored, she may not be silent for such a long time. As

such, the contention of learned counsel for the appellant is having

no force. Therefore, the same may not be considered.

19. The further contention of learned counsel for the appellant is

that as per Section 24 of POCSO Act, statement of the victim has to

be recorded at her home or at the place of choice of the victim.

Whereas in the present case, the statement of the victim was

recorded in Barosa center, as such, there is a clear violation of

Section 24 of the POCSO Act. The Barosa centre is run by the

police wherein they created the atmosphere of child friendly

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atmosphere. They recorded the statement of girl child in Barosa

center, which is not fatal to the prosecution. Moreover, Section 24

of POCSO Act is to facilitate the victim and nowhere will it produce

the accused for recording of the statement in Barosa center.

Therefore, the contention of the learned counsel for the appellant

has no force.

20. Further, contention of learned counsel for the appellant is

that the victim deposed about the Mena Aunty. The said Mena was

not examined by the prosecution. Whereas the prosecution case

said that Mena is the shop owner and Malathi is eye witness, who

was examined in the Court.

21. Learned counsel for the appellant further contended that the

victim was examined by the Medical Officer after two (2) months

after the incident. According to Section 164-A of Cr.P.C., victim has

to be examined within 24 hours of the offence, whereas, in the

present case, it is not a sexual intercourse, but it is a sexual

assault. Therefore, examination of witness after two (2) months is

not fatal to the prosecution case, as it is only sexual assault.

Therefore, there is no force in the contention of the appellant.

22. Making his submission, learned counsel for the

appellant/accused relied upon the decision of the Hon'ble Apex

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Court in "K. Venkateshwarlu vs. State of Andhra Pradesh 1"

wherein the Hon'ble the Supreme Court dealing with the aspect at

paragraph Nos.9 and 11 of the Judgment held as follows:

"9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to close scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.

11. Having perused the evidence of all the witnesses, we find it difficult to rely on them. We feel that the trial Court had rightly discarded their evidence as unworthy of reliance and the High Court erred in taking it into consideration. This, in our opinion, is a case where neither the evidence of the parents of the victim P.W.2 Aruna nor the evidence of P.W.2 Aruna, nor the evidence of the child witnesses, who claim to have witnessed the incident, not the medical evidence supports the prosecution case. Besides, all the pancha witnesses have turned hostile, a fact which we have noted will some anguish. A needle of suspicion does point out to the appellant because he is a police constable and in a small village where the incident took place, witnesses may be scared to depose against him because of his clout. There are certain circumstances which do raise suspicion about the appellant's involvement in the crime. The children were playing on the terrace of the appellant. The appellant was not arrested by the police till 04.09.1998. The demeanor of P.W.2 Aruna, the tears in her eyes, her walking out of the court after looking at the appellant, pricks the judicial

(2012) 8 Supreme court Cases 73

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conscience. But convictions cannot be based on suspicion, conjectures and surmises. We are unable to come to a conclusion that the trial Court's judgment is perverse. For want of legal evidence we will have to set aside the appellant's conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt."

23. The Supreme Court observed that child witness can be easily

tutored either by threat, coercion or inducement. Therefore, the

Court must be satisfied that the attendant circumstances do not

show that the child was acting under the influence of someone or

was under a threat or coercion.

24. In the present case, the evidence of P.W.2 is convincing and

cogent and demeanor of the victim recorded by the learned

Sessions Judge shows that she was not tutored and she remained

silent for sometime after repeated questions and she deposed only

about the incident.

25. Learned counsel for the appellant/accused further relied

upon the decision of the High Court of Delhi in "Altaf Ahmed vs.

State (GNCTD of Delhi) 2" wherein the High Court of Delhi dealing

with the aspect at paragraph No.17 of the Judgment held as

follows:

"17. At this stage, I deem it apposite to refer to another aspect of the cross-examination of the child victim, wherein she had admitted that before coming to the Court, her mother told her as to what is to be stated in the Court. While answering the Court questions, the child victim also stated that before being taken to the hospital, her mother had told her as to what is to be stated to the doctor. The

2021(1)RCR(criminal)296

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creditworthiness and the admissibility of the statement of child victim and her mother is under challenge not only on the aspect of improvements but also on the aspect of tutoring. It is no longer res integra that the sole testimony of a child victim, before being accepted should be evaluated very carefully. It should be devoid of any embellishment, improvement or tutoring."

26. Learned counsel for the appellant/accused further relied

upon the decision of the High Court of Karnataka in "The State of

Karnataka and ors. Vs. Shivanaik 3"wherein the High Court of

Karnataka dealing with the aspect at paragraph No.27 of the

Judgment held as follows:

"27. The testimony of the victim, or the testimony of her mother, are not in consonance with each other's testimony and their testimonies are not corroborated by the medical or other circumstantial evidence. Further, their testimony do not appear natural or trustworthy in view of the material infirmities as discussed supra. Therefore, it cannot be concluded that the prosecution has been able to establish all the ingrediants or segments of its case to bring the culpability. In addition, the improvements in the testimony of the victim's mother, the categorical medical evidence about the lack of any injury to the victim, a very fragile and unsubstantiated explanation for the delay in lodging the complaint and the victim's testimony in complete tandem with her statement recorded under Section 162 Cr.P.C., indicates that the victim's testimony could be alacritous testimony, and therefore, tutored and influenced."

27. The High Court of Karnataka observed that the testimony of

the victim or the testimony of her mother are not in consonance

with each other's testimony and their testimonies are not

corroborated by the Medical Officer or other circumstantial

evidence.

Crl.A.Nos.100219 of 2014 & 100275 of 2017

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28. In the present case, the evidence of P.Ws.1 and 2 is

corroborated with each other. Further, for the offences punishable

under Section 376 of IPC and Section 4 of the Protection of

Children from Sexual Offences Act, 2012, the evidence of victim

itself is sufficient. It does not need corroboration of the testimony.

In the present case, P.Ws.1 and 2 evidence is corroborating with

each other.

29. Learned counsel for the appellant/accused further relied

upon the decision of the Supreme Court in "Sham Singh vs. State

of Haryana" 4 wherein the Supreme Court dealing with the aspect

at paras 23 and 24 of the Judgment held as follows:

"23. The evidence of the victim/prosecutrix and the aunt P.W.10 are unreliable, untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist ourselves to place on record that the prosecution has tried to rope in the appellant merely on assumptions, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems to be neither the truth, nor wholly the truth. The findings of the Court below, though concurrent, do not desire the merit of acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face on record resulting in serious and grave miscarriage of justice to the appellant.

24. We find that the trial court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape."

(2018) 18 Supreme Court Cases 34

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30. In the present case, P.W.1 and P.W.2 evidence is

corroborating with each other supporting by P.W.4 evidence.

Further, it is a case of sexual assault therefore medical evidence

does not have much effect.

31. The contention of the learned counsel for the appellant is

that there are disputes between the accused and victim's family.

The quarrel between the accused and victims family is due to the

tuition fee and he also contended that P.W.4 borrowed an amount

of Rs.10,000/- from the accused and not paid the amount and that

they filed a false case, which is baseless allegation, against the

accused. No parent will give a false complaint against the person

alleging such a heinous allegation against the accused at the cost

of reputation of their daughter.

32. In the light of the said submission, it is relevant to extract

Sections 29 and 30 of the Protection of Children from Sexual

Offences Act, 2012 which is held as follows:-

"29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5 and 7 and Section 9 of this Act, the Special court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of Culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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(2) for the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability."

33. There is no reason to depose against the accused by the

victim girl. Therefore, the defence of the accused is not tenable.

Further, the counsel for the appellant mentioned about the Section

30 of POCSO Act and his contention is that Section 30 (2) wherein

it is stated for the purpose of the fact is said to be proved only

when the Special Court believes it to exist beyond reasonable

doubt and not merely preponderance of probability. In Section 29

of POCSO Act, there is a presumption as to certain offence where a

person is committed or abetted commission of offence under

Section 3, 5, 7 and 9 of POCSO Act. There is a presumption that

as the person has committed or tortured or admitted to commit the

offence as the case unless contrary is proved. The evidence of the

prosecution proves that the offence against accused beyond

reasonable doubt, the evidence of P.W.2 proves the offence against

the accused. Therefore, the presumptions can be taken against the

accused. As such, there is no force in the contention of the

appellant.

34. In view of the above discussion, there are no infirmities in

the judgment of the trial Court. There are no merits in the appeal

and the appeal is liable to be dismissed. Whereas in view of the

submissions made by the appellant, considering the facts and

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circumstances of the case, this Court deems it appropriate to

reduce the sentence of imprisonment maintaining the conviction

against the appellant for the offence punishable under Sections

354, 354-A and 506 of the IPC and Section 9(m) read with Section

10 of the POCSO Act.

35. IN THE RESULT, the present Criminal Appeal is partly

allowed. The sentence imposed on the appellant/Accused in

SC.P.C.S.No.30 of 2019, dated 05.02.2020 by the learned I

Additional Metropolitan Sessions Judge-cum-Special Judge for

Trial of Cases under Protection of Children from Sexual Offences

Act, Hyderabad, is reduced to rigorous imprisonment for a period

from seven (7) years to five (5) years.

As a sequel, miscellaneous petitions, pending if any, shall

stand closed.

______________ K.SUJANA, J

DATE:

SAI