Shaik Irfan Or Adaam Or Omer vs The State Of Telangana
2023 Latest Caselaw 4081 Tel

         THE HON'BLE SMT JUSTICE K. SUJANA

             CRIMINAL APPEAL No.15 of 2019
JUDGMENT:

Aggrieved by the Judgment dated 13.04.2018 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.124 of 2016, the present

Criminal Appeal is filed.

2. Heard Sri C. Sharan Reddy, 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 the appellant/accused for the

offence punishable under Sections 509 and 448 of the Indian Penal

Code, 1860 (for short 'the IPC') and Section 12 of the Protection of

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

Act') and sentenced him to undergo three (3) years rigorous

imprisonment and to pay fine of Rs.2,000/-, in default of payment

of fine amount, he has to undergo simple imprisonment for a

period of three (3) months; further, sentenced to undergo simple

imprisonment for a period of one (1) year and to pay a fine of

Rs.500/- for the offence punishable under Section 509 of IPC, in

default of payment of fine amount, further undergo simple

imprisonment for a period of one (1) month; and further sentenced

SKS,J Crl.A.No.15 of 2019

to undergo simple imprisonment for a period of one (1) year and to

pay a fine of Rs.500/- for the offence punishable under Section

448 of IPC, in default of payment of fine amount, further undergo

simple imprisonment for a period of one (1) month.

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

appeal is preferred by the appellant.

5. The facts of the case as per the prosecution are that on

20.05.2016, P.W.1 lodged a complaint with the Police Falaknuma

stating that on 19.05.2016 at about 4:30 pm to 5:00 pm, when his

daughter, aged about 3 ½ years, and sister's son by name Md.

Shageel, aged about 10 years, were playing in his house. The

accused, who is aged about 28 years, went to his house and called

Pw.1's daughter and son in law to him, opened his pant and by

showing his penis to his daughter, asked her to keep his penis in

her mouth for which he will give five rupees to her but she ran

away from the house. The accused also asked his son-in-law to

open his pant but he rejected and the accused threatened his

nephew. P.W.2 told the incident to all her friends and told to the

neighboring people, who went to his house. By seeing all the

people, the accused ran away. When P.W.1 went to house at 11:30

pm, his son in law told everything to him. When he enquired with

his victim daughter, she also revealed the same to him. Basing on

the said complaint, the police registered a Crime, took up

SKS,J Crl.A.No.15 of 2019

investigation and recorded the statements of P.Ws.1 to 4 and

apprehended the accused and the accused confessed the

commission of offence and he was arrested and produced before

the Court. Later, charge sheet was filed for the offence punishable

under Sections 448 and 509 of the IPC and Section 11 read with

12 of the POCSO Act.

6. To prove their case, the prosecution examined P.Ws.1 to 4

and got marked Exs.P1 to P3. On behalf of the accused Exs.D1 to

D3 were marked. No oral evidence was adduced but basing on the

evidence on record, the trial Court convicted the accused as stated

supra.

7. Learned counsel for the appellant would submit that the trial

Court erred in convicting the appellant for the offences punishable

under Section 12 of the POCSO Act and Sections 509 and 448 of

the IPC. by relying on the testimonies of P.Ws.1 and 2. The trial

Court ought to have seen that P.W.2 is a child witness and her

evidence cannot be taken into consideration to convict the

accused. He also submitted that P.W.2 has named different

persons in her statement recorded under Section 164 of Cr.P.C.,

and Section 161 of Cr.P.C. Further, P.W.2 could not identify the

accused in the Court. Therefore, the conviction is liable to be set

aside and prayed the Court to set aside the conviction and

sentence by allowing the appeal. Even otherwise, the evidence on

SKS,J Crl.A.No.15 of 2019

record is not sufficient to prove the guilt of the accused. Mainly,

the victim girl failed to identify the accused in the Court and there

is discrepancy in the names of the accused, as such, prayed the

court to allow the appeal by acquitting the accused.

8. Per contra, the learned Assistant Public Prosecutor would

submit that the evidence on record is sufficient to prove the guilt of

the accused and statement of the victim itself is sufficient to

convict the accused. Further, there are presumptions under

Sections 29 and 30 of the POCSO Act and as such, prayed the

Court the dismiss the appeal.

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

trial court needs any interference or not.

10. Having regard to the rival submissions and the evidence on

record, the name of the accused as stated by the prosecution is

Shaik Irffan @ Adaam @ Omer. The crucial witness in this case is

the victim girl, who is aged about 3 ½ years old. She deposed

about the incident and to test her veracity, the learned Judge had

asked preliminary questions and after being satisfied with her

answers only, her evidence was recorded. Learned counsel for the

appellant also not disputed the veracity of the testimony of P.W.2.

The victim girl narrated the incident in the Court. In her cross-

examination, she stated that she knows the person by name

SKS,J Crl.A.No.15 of 2019

Adaam and that he is her maternal uncle. Exs.D1 and D2 are the

relevant portions of Section 161 Cr.P.C., statement of the victim

girl.

11. P.W.1 is the father of P.W.2. He lodged a complaint with

police and his evidence is that neighbors informed him about the

incident that the accused, who is his friend, came to their house

and committed the offence. Though he was cross-examined,

nothing was elicited in favour of the accused.

12. P.W.3 is the women police, who recorded the statement of

the victim girl. P.W.4 is the Investigating Officer and he deposed

about the investigation done by him.

13. The crucial evidence on record is of P,.W.2 and the same is

corroborating with that of P.W.1. The only contention raised by the

learned counsel for appellant is the identity of the accused. The

accused is the friend of P.W.1 and the victim has clearly deposed

that Adaam uncle has committed the offence. Prosecution

disputed the contention of learned counsel for the

appellant/accused that name is different. The contention of the

prosecution is that the accused has two other names i.e., Shaik

irfan and Adaam besides his original name Shaik Omer and his

name was written in the record as Shaik Irfan @ Adaam @ Omer.

SKS,J Crl.A.No.15 of 2019

14. Though the counsel for the appellant submitted that real

culprit is maternal uncle of P.W.2., and this accused was falsely

implicated, no reasons were assigned to falsely implicate the

accused in the case. There is no evidence on record. To prove that

there are disputes between the accused and P.W.1 and nothing is

brought on record to prove that due to the disputes between P.W.1

and the accused, the accused was falsely implicated in this case at

the cost of reputation of 3 ½ old daughter.

15. The evidence on record clearly shows the commission of

offence by the accused. The evidence of the victim girl is

corroborating with the statement under Section 164 of Cr.P.C. The

victim girl is aged about 3 ½ years. There is no necessity for her to

implicate the accused in such a heinous offence. Therefore, there

is no reason to disbelieve her, her evidence and it can be accepted

as it is unshaken evidence.

16. There are no infirmities in the judgment of the trial court.

The trial Court has rightly convicted the accused and there are no

merits in the appeal. Whereas considering the age of the accused,

the sentence imposed for the offence under Section 11(i) under

Section 12 of the POCSO Act is modified reduced to one year from

three years.

SKS,J Crl.A.No.15 of 2019

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

allowed. The sentence of three (3) years rigorous imprisonment

imposed under Section 11(i) punishable under Section 12 of the

POCSO Act on the appellant/Accused in S.C.P.C.S.No.124 of 2016,

dated 13.04.2018 by the learned I Additional Metropolitan Sessions

Judge-cum-Special Judge for trial of Cases under Protection of

Children from Sexual Offences Act, Hyderabad, alone is reduced

from three (3) years to one (1) year. The remaining sentences are

confirmed. All the sentences shall run concurrently. As the

appellant is on bail, appellant/accused is directed to surrender

before the trial Court within fifteen days from today, for serving out

the remaining sentence. In case, the appellant fails to surrender,

the trial Court shall take steps to secure the presence of accused

for serving out the remaining sentence.

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

stand closed.

______________ K.SUJANA, J

DATE:

SAI

SKS,J Crl.A.No.15 of 2019

THE HON'BLE SMT JUSTICE K. SUJANA

CRIMINAL APPEAL No.15 of 2019

SAI