Telangana High Court
M. Narsing Rao , Narsing vs The State Of Telangana on 19 February, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 425 OF 2018
JUDGMENT:
The appellant/accused filed this appeal questioning the
conviction recorded by the I Addl.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.127/2016, dated 19.12.2017, for the offences
punishable under Section 6 r/w.18 of the Protection of Children
from Sexual Offences Act, 2012; under Section 376(2)(i) r/w.511 of
Indian Penal Code, and sentencing him to undergo Rigorous
Imprisonment for a period of five years and to pay a fine of
Rs.2,000/- for the offence under Section 6 r/w.18 of the POCSO
Act, 2012; to undergo Rigorous Imprisonment for a period of five
years and to pay a fine of Rs.2,000/- for the offence under Section
376(2)(i) r/w.511 of IPC.
2. Briefly, the case of the prosecution is that the appellant
attempted to commit rape on the victim-PW.1. On seeing the acts
of the appellant, one woman, namely Rehana, who is a neighbour,
rescued the girl. Thereafter, PW.2, who is the mother of the victim
girl, lodged complaint with the Police alleging that the appellant
offered Chocolates to the victim girl. When PW.1 went inside the
house of appellant, the appellant removed his pant zip and the
underwear of the victim girl and laid on her. She cried due to pain
and the appellant pinched her on her cheek and beat her. On
hearing the shouts, the neighbor, namely Rehana, rescued the
victim girl.
3. The victim girl was sent for medical examination. PW.5,
examined the victim girl and opined that there is no evidence of
any injuries over body parts and external genitalia; and her vitals
are stable and as per his clinical findings, there is no evidence of
penetration and no injuries over external genitalia, but semen and
spermatozoa are detected on undergarments and T-shirt as per
the FSL report.
4. The appellant was charge sheeted under Section 376(2) of
IPC and Section 5(m) r/w.6 of the POCSO Act. Further, charge
under Section 3(2)(v) of the SC/STs (PoA) Act, 1989, was also
framed.
5. The victim during her evidence stated that:
"On one day my parents went outside to attend their job. My
brother Mahesh was watching T.V in our house and I was
playing outside of our house. Accused took me to his house
by saying that he will give me chocolates. After taking me
inside of his house, the accused removed his pant and also
removed my drawer and he has fallen on me on the ground.
Accused caused scratches on my cheek by pinching. I was
weeping by crying. Mean while one Muslim aunty came
inside the house of accused and rescued me from the
clutches of the accused and brought me to LW.4 Sarala my
maternal aunt. My maternal aunt LW.4 Sarala called to my
mother over phone and informed about the incident. On the
next day morning myself, my parents and LW.4 Sarala went
to police station and reported the incident to the police."
6. The Court below, on the basis of the victim girl's evidence,
found that the act of the appellant amounts to attempt to commit
rape and accordingly, convicted the appellant.
7. The alleged acts of the appellant do not fall within the
definition of Penetrative Sexual Assault, defined under Section 3 of
the POCSO Act.
"3. Penetrative sexual assault.--A person is said to commit
"penetrative sexual assault" if-- (a) he penetrates his penis, to
any extent, into the vagina, mouth, urethra or anus of a child
or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or anus of the
child or makes the child to do so with him or any other person;
or
(c) he manipulates any part of the body of the child so as to
cause penetration into the vagina, urethra, anus or any part of
body of the child or makes the child to do so with him or any
other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of
the child or makes the child to do so to such person or any
other person."
8. The punishment for Penetrative Sexual Assault is under
Section 4 of the POCSO Act. However, if penetrative sexual assault
is committed on a child below 12 years, the offence amounts to
aggravated penetrative sexual assault punishable under Section 6
of the POCSO Act. None of the ingredients of Section 3 of POCSO
Act are made out in the present case. The acts of the accused fall
within the definition of Section 7 of the Act and not Section 3 of
the Act.
9. Section 7 of the POCSO Act is as under:
"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."
10. The appellant had called the victim girl inside his house,
removed his pant and fallen on the victim, on the ground. The said
act, as narrated by victim girl, would amount to physical contact
with sexual intent and without penetration, which is defined
under Section 7 of the POCSO Act, and punishable under Section
10 of the POCSO Act.
11. Accordingly, Criminal Appeal is partly allowed and the
appellant is convicted under Section 10 r/w.18 of the POCSO Act
and sentenced to undergo rigorous imprisonment for a period of
two and a half years. The appellant's conviction, under Section 6
r/w.18 of Act and Section 376 (2) (i) r/w. 511 of IPC, are hereby
set aside. Since the appellant is on bail, the trial Court is directed
to cause appearance of the appellant and send him to prison to
serve out the remaining part of sentence.
__________________
K.SURENDER, J
Date: 19.02.2025
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THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 425 OF 2018
Dt. 19.02.2025
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