Andhra Pradesh High Court - Amravati
Nimmakuri Sai Ram, Krishna Dt., vs The State Of Ap., Rep Pp., on 30 September, 2024
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
HON'BLE SRI JUSTICE K.SURESH REDDY
AND
HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos. 66, 147, 157, 256 & 994 OF 2017
COMMON JUDGMENT:(per Hon'ble Sri Justice K.Suresh Reddy) Accused Nos. 1 to 5 in Sessions Case No. 60 of 2014 on the file of the Court of learned Special Judge for Trial of Offences under Protection of Children from Sexual Offences Act - cum - Additional Metropolitan Sessions Judge, Vijayawada (for short, 'the trial Court'), are the appellants in Criminal Appeal Nos. 994, 66, 157, 256 and 147 of 2017 respectively. Since all these appeals arise out of the same Sessions Case, they are heard together and are being disposed of by this common judgment.
2. Accused Nos. 1 to 5 were tried by the trial Court under the following charges:
I charge was under Section 4 read with Section 3 (a) of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), against accused No. 1 or in the alternative under Section 376 (1) read with Clause I of 375 of Indian Penal Code (for short, 'IPC') for committing penetrative sexual assault against 2 P.W.2 on 12-12-2013 at about 3 p.m. at his house situated near Kennedy High School, Kanuru;
II charge was under Section 384 IPC against accused No. 1 for extorting a gold chain from P.W.2 under threat on 15-12-2013 at NTR Circle, Vijayawada;
III charge was under Section 384 IPC against accused Nos. 1, 2, 4 and 5 for extorting a gold chain from P.W.2 by showing video containing her sexual act with accused No. 1 four or five days prior to 15-12-2013;
IV charge was under Section 67 B of the Information Technology Act, 2000, against accused Nos. 1, 2, 4 and 5 for showing video of sexual act of P.W.2 with accused No. 1 four or five days prior to 15-12-2013;
V charge was under Section 6 read with Section 5 (g) of POCSO Act against accused Nos. 1, 2, 4 and 5 for committing gang penetrative sexual assault on P.W.2 on 15-02-2014 at about 1 p.m. or in the alternative under Section 376 D IPC or in the alternative under Section 6 read with Section 5 (1) of POCSO Act or in the alternative under Section 376 (2) read with Section 376 (2) (n) IPC;
3VI charge was under Section 4 read with Section 3 (a) of POCSO Act against accused No. 1 for committing penetrative sexual assault on P.W.4 during June, 2014 at 7 p.m. or in the alternative under Section 376 (1) read with Clause I of 375 IPC; VII charge was under Section 12 read with Section 11 (i) of POCSO Act against accused Nos. 1, 2, 4 and 5 for committing sexual harassment against P.W.4 during the last week of July, 2014, or in the alternative under Section 354 A (2) read with Section 354 A (1) (ii) IPC;
VIII charge was under Section 384 IPC against accused Nos. 1 to 3 for extorting gold rings from P.W.6 two months prior to 08-09-2014 at Kamayyathopu Centre Bus Stop, Kanuru; IX charge was under Section 12 read with Section 11 (i) of POCSO Act for committing sexual harassment on P.W.6 two months prior to 08-09-2014 at Kamayyathopu Centre Bus Stop, Kanuru, or in the alternative under Section 354 (2) read with Section 354 A (1) (iv) IPC;
X charge was under Section 14 (2) read with Section 13 (a) (b) of POCSO Act against accused No. 1 for using P.W.4 for pornographic purpose on 23-08-2014; and 4 XI charge was under Section 14 (1) read with Section 13 of POCSO Act against accused Nos. 2 to 5 for using P.W.4 for pornographic purpose on 23-08-2014 and 16-09-2014.
3. After completion of trial, the trial Court convicted the accused as under:
Under charges II and III, accused Nos. 1, 2, 4 and 5 are sentenced to suffer rigorous imprisonment for one year and also to pay a fine of Rs.10,000/- each, in default to suffer simple imprisonment for a period of three months; under charge IV, accused Nos. 1, 2, 4 and 5 are sentenced to suffer rigorous imprisonment for two years and also to pay a fine of Rs.20,000/- each, in default to suffer simple imprisonment for a period of six months; under charge V, accused No. 1 is sentenced to suffer imprisonment for life i.e. natural life and also to pay a fine of Rs.2,00,000/-, in default to suffer simple imprisonment for a period of six months, and accused Nos. 2, 4 and 5 are sentenced to suffer imprisonment for 20 years and also to pay a fine of Rs.1,00,000/- each, in default to suffer simple imprisonment for a period of six months; under charge VI, accused No. 1 is sentenced to suffer imprisonment for seven years and also to pay a fine of Rs.50,000/-, in default to suffer simple imprisonment for a period of six months; under charge VII, accused Nos. 1, 2, 4 and 5 are sentenced to suffer rigorous imprisonment for one 5 year and also to pay a fine of Rs.10,000/- each, in default to suffer simple imprisonment for a period of three months; and under charge XI, accused Nos. 2 to 5 are sentenced to suffer rigorous imprisonment for three years and also to pay a fine of Rs.10,000/- each, in default to suffer simple imprisonment for a period of three months. The trial Court acquitted accused Nos. 1 to 3 of charges VIII and IX and also acquitted accused No. 1 of charge X.
4. Case of the prosecution as per the evidence of prosecution witnesses is thus:
On 22-08-2014, P.W.3 went to Mahila Police Station, Vijayawada, and gave a report-Ex.P2 to the Inspector of Police, Mahila Police Station-P.W.16. On the basis of the said report, P.W.16 registered a case in crime No. 106 of 2014 for the offences under Sections 384, 354 A (1) (ii), 354 D (1), 506 and 509 read with Section 34 IPC under Ex.P20-FIR. In Ex.P2, P.W.3 stated that she is a homemaker and her husband is working as Quality Control Engineer in S.G. Prakasa Spectro Casting. They were blessed with one daughter-P.W.4 and one son. P.W.4 completed her II year intermediate and also appeared for EAMCET examination. As P.W.3 found missing of cash of Rs.10,000/-, she along with her husband questioned P.W.4 and her brother. Both the children denied about the missing of cash. After some time, P.W.3 6 also found missing of gold chain belonging to P.W.4. When P.W.3 and her husband confronted P.W.4, she disclosed that four persons i.e. accused Nos. 1 to 3 and one Ravi Teja-child in conflict with law were following and teasing her with obscene words. She further disclosed that the said four persons threatened her that they had a big gang; that they demanded money from her and due to fear, she paid an amount of Rs.10,000/- periodically and that when they further demanded money threatening to kill her father, she gave gold chain worn by her.
Having received the report, P.W.16 went to the house of P.W.3 on the next day and recorded statement of P.W.4. In her statement, P.W.4 specifically stated that the accused committed penetrative sexual assault on her. After recording the statement of P.W.4, P.W.16 added Section 376 IPC and Section 6 of POCSO Act and issued Ex.P21- Altered FIR. On the same day afternoon, P.W.16 went to the house of accused No. 1 along with P.W.12 and another-Mediators and apprehended accused No. 1 under Ex.P8-Panchanama. Accused No. 1 made a confession under Ex.P7 in the presence of mediators. On the confession made by accused No. 1, P.W.16 seized M.Os.3 to 6 from his possession. On the confession made by accused No. 1, P.W.16 arrested accused Nos. 2 to 5 at NTR Circle, Vijayawada, and recovered 4 C.Ds. from the possession of accused Nos. 2 to 5 under Ex.P9. 7
Accused No. 1 further confessed that he sold gold chains-M.Os.1 and 2 at the gold shop of P.W.8 situated at Kaleswara Rao Market, Vijayawada. Immediately, P.W.16 went to the shop of P.W.8 and seized M.Os.1 and 2 from the shop of P.W.8 in the presence of mediators.
During the course of investigation, P.W.16 came to know that the accused committed penetrative sexual assault and also extorted money and gold from various victim girls studying intermediate. As such, P.W.16 gave wide publicity through print and electronic media on 22-08-2014 and 23-08-2014 requesting the victims to approach her and that they will not disclose the details of the victims. During the course of investigation, P.W.16 came to know that about 12 victims, studying intermediate, were lured and trapped by the accused but only 3 victim girls came forward and they are P.Ws.2, 4 and 6. Having noticed the publicity given by P.W.16, P.W.1, mother of another victim girl-P.W.2, approached P.W.16 and gave a statement. Thereafter, P.W.16 also recorded statement of P.W.2. In her statement, P.W.2 stated that the accused committed penetrative sexual assault on her and extorted money and gold from her. Similarly, P.W.5, mother of another victim girl-P.W.6, also approached P.W.16 and stated that her daughter was also lured and teased by the accused. P.W.16 also recorded statement of P.W.6. In her statement, P.W.6 stated that the accused extorted gold 8 matties-M.O.3 from her. All the three victim girls i.e. P.Ws.2, 4 and 6 specifically stated that the accused morphed their photos and also taken photos and videos of sexual assault of P.Ws.2 and 4. Photographs were marked as Exs.P26 to P28. Statement of P.W.1 was recorded on 05-09-2014 and statement of P.W.8 was recorded on 08-09-2014.
P.W.16 conducted test identification parade on 08-09-2014 to identify M.Os.1 to 3 under Exs.P12 and P13 in the presence of P.W.7 and another. In the said test identification parade, P.W.2 and P.W.6 identified M.Os.1 to 3. On the same day, P.W.16 seized one C.D. from accused No. 3, which contains obscene photos and videos, under Ex.P14-Panchanama. On 05-09-2014, P.W.14-Professor, Head of the Department of Forensic Medicine, Siddhartha Medical College, Vijayawada, examined accused Nos. 1 to 5 and gave potency certificates under Exs.P15 to P19. P.W.9-Principal, Sri Chaitanya Mahila Junior Kalasala, Mythreyee Campus, Ganguru, issued Ex.P4- Study Certificate pertaining to P.W.2. Similarly, P.W.10-Principal, Sri Vignana Vihara English Medium School, Enikepadu, issued Ex.P5- Letter stating that the date of birth of P.W.4 is 30-11-1996. Similarly, P.W.11-Principal, Ravindra Bharathi School, Mogalrajpuram, Vijayawada, issued Ex.P6-Letter indicating the date of birth of P.W.6 as 20-09-1997. According to P.Ws.9 to 11, all the three victims i.e. P.Ws.2, 9 4 and 6 were minors on the date of commission of offence. P.W.16 sent M.Os.5 to 8 to Forensic Science Laboratory under Ex.P24-Letter of advice. F.S.L. Report is marked as Ex.P25 which shows that the items sent to F.S.L. contain unedited videos and images. The report further indicated that no morphing was present in the said items. After receiving F.S.L. Report and after completion of investigation, P.W.16 filed charge sheet.
5. In support of its case, the prosecution examined P.Ws.1 to 16 and got marked Exs.P1 to P30 apart from exhibiting M.Os.1 to 8.
6. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material appearing against them and reported no defence evidence but however got marked Ex.D1-Photostat Copy of paper clipping of Andhra Jyoti Telugu Daily on their behalf.
7. Accepting the evidence of prosecution witnesses, the trial Court convicted the accused as stated supra.
8. Dr. Challa Srinivasa Reddy, learned counsel appearing for the appellants-accused Nos. 1 and 5, would contend that there is any amount of delay in lodging report to police and P.Ws.2, 4 and 6 kept quiet for a period of six months without informing the incident to anyone; that P.Ws.2, 4 and 6 were not subjected to medical examination to know 10 whether or not the accused committed penetrative sexual assault on them; that P.W.2 at one stage stated that the incident took place at about 2 p.m. and she at another stage stated that the incident took place at about 6 p.m. on 15-02-2014 and as such, the evidence of P.W.2 is contradictory as there is variation of time; that the evidence adduced by the prosecution by exhibiting M.Os.5 to 8 does not meet the requirements of Section 65-B of the Indian Evidence Act, 1872 (for short, '1872 Act'), and that the evidence of P.Ws.2, 4 and 6 coupled with the evidence of P.Ws.1, 3 and 5 cannot be believed as it is a belated version.
9. Sri Narra Srinivasa Rao, learned counsel appearing for the appellants-accused Nos. 3 and 4, would contend that P.W.2 did not state about the rape committed by accused Nos. 3 and 4 and that P.W.2 in her evidence stated that the accused committed sexual act and as such, they cannot be convicted under Section 376-D IPC, of course accused No. 3 was not convicted under Section 376-D IPC by the trial Court.
10. Sri Challa Ajay Kumar, learned counsel appearing for the appellant-accused No. 2, would contend that accused No. 2, as on the date of commission of offence, was less than 18 years of age and accordingly I.A.No. 1 of 2022 was filed seeking his release on bail; that 11 this Court by order dated 09-11-2022 directed the Juvenile Justice Board concerned to determine the age of accused No. 2 as on the date of commission of offence and submit a report to the Court within a period of two weeks from the date of the order and that the Principal Magistrate, Juvenile Justice Board - cum - II Additional Chief Metropolitan Magistrate, Vijayawada, conducted an inquiry and submitted a report dated 07-12-2022 determining the age of accused No. 2 as less than 18 years on the date of commission of offence and he was a child in conflict with law.
11. On the other hand, learned Public Prosecutor opposed the criminal appeals and supported the judgment of conviction and sentence passed by the trial Court. Learned Public Prosecutor would contend that in a case of this nature, there will be some delay as reputation of family of the victim girls would be at stake; that though P.Ws.2, 4 and 6 were not subjected to medical examination, their evidence coupled with the evidence of P.Ws.1, 3 and 5 can be relied on; that it is only after giving wide publicity by P.W.16 on 22-08-2014 and 23-08-2014 in print and electronic media, P.Ws.2 and 6 along with P.Ws.1 and 5 came forward and till such time, P.Ws.2, 4 and 6 were threatened by the accused with dire consequences of uploading their photos and videos in social media and internet; that P.Ws.2, 4 and 6 12 were further frightened that the accused belonged to a big gang and they may cause harm to lives of their family members; that the video files and the material objects were played in the presence of the accused and their counsel, which were received from F.S.L., enabling them to prosecute their defence; that as M.Os.5 to 8 contain the original data and as there is no transfer of data from the original mobile phone, pen drive and D.V.Ds., there is no necessity to obtain certification as required under Section 65-B of 1872 Act and that even if P.Ws.2, 4 and 6 were subjected to medical examination, no useful purpose would be served as there was a time gap of more than six months. He therefore prays to dismiss the criminal appeals by confirming the conviction and sentence recorded by the trial Court.
12. This Court perused the entire material available on record.
13. It is P.W.3, mother of P.W.4, who set the criminal law into motion. As cash and gold were found missing from house, P.W.3 questioned her daughter-P.W.4. It is only thereafter, P.W.4 informed P.W.3 about the offences committed by the accused. Having come to know of the same from P.W.4, P.W.3 immediately i.e. on 22-08-2014 gave a report to P.W.16. Basing on the report of P.W.3, a case in crime No. 106 of 2014 of Mahila Police Station, Vijayawada, was registered. On the very next day, P.W.16 went to the house of P.W.3 and recorded statement of 13 P.W.4., in which she narrated the entire offence committed by the accused. Having come to know about the incidents through P.W.4, P.W.16 gave wide publicity in print and electronic media on 22-08-2014 and 23-08-2014 highlighting about trapping of innocent girls who are studying intermediate and blackmailing them with photos and videos and extorting money and gold from them and requested the victim girls if any to come forward and make a complaint and assured that their identity and other particulars would not be disclosed. It is only on that assurance, P.Ws.1 and 5 came forward and stated that P.Ws.2 and 6 were also victims in the hands of the accused.
14. So far as recovery of gold chains-M.Os.1 and 2 is concerned, P.W.8 clearly stated in his evidence that accused No. 1 sold M.Os.1 and 2 in his gold shop. The evidence of P.W.12-mediator also clearly shows that M.Os.1 and 2 were recovered from the shop of P.W.8 on the confession made by accused No. 1. Similarly, P.W.12-mediaotr in his evidence clearly stated that M.Os.4 to 8 were recovered from the possession of the accused and that they were sent to Forensic Science Laboratory and the report of Forensic Science Laboratory was marked as Ex.P25. As such, the prosecution is able to prove recovery of M.Os.1 to 8 by adducing the evidence of P.Ws.4 to 8. The evidence of 14 P.Ws.9 to 11 coupled with Exs.P4 to P6 clinchingly established that P.Ws.2, 4 and 6 were minors on the date of offence.
15. Even according to P.W.2, accused No. 4 did not commit offence against her on 15-02-2014. Though it is alleged by the prosecution that accused Nos. 1, 2, 4 and 5 committed penetrative sexual assault on P.W.2, she did not state in her evidence that accused No. 4 also committed penetrative sexual assault on her. P.W.2 in her evidence stated that it is only accused Nos. 1, 2 and 5 who committed penetrative sexual assault on her.
16. Sri Challa Ajay Kumar, learned counsel appearing for the appellant-accused No. 2, places reliance on Karan @ Fatiya Vs. State of Madhya Pradesh1; and Shilpa Mittal Vs. State (NCT of Delhi) and another2 to contend that the Court, which finds that the person who committed the offence was a child on the date of commission of such offence, would forward the child to the Juvenile Justice Board for passing appropriate orders and sentence, if any, passed by the Court shall be deemed to have no effect and that the sentence in such a situation cannot exceed a period of three years. 1 (2023) 5 SCC 504 2 (2020) 2 SCC 787 15
17. Sub-section (3) of Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015, does not specifically or even impliedly provide that the conviction recorded by any Court with respect to a person who has subsequently after the disposal of the case been found to be juvenile or a child would also lose its effect rather it is only the sentence if any passed by the Court would be deemed to have no effect. The intention of the legislature was to give benefit to a person who is declared to be a child on the date of offence only with respect to its sentence part. In the case on hand, pursuant to the orders of this Court dated 09-11-2022, the Principal Magistrate, Juvenile Justice Board - cum - II Additional Chief Metropolitan Magistrate, Vijayawada, conducted an inquiry and submitted a report dated 07-12-2022 determining the age of accused No. 2 as less than 18 years on the date of commission of offence and he was a child in conflict with law.
18. For all the reasons recorded hereinabove, it is ordered as follows:
Criminal Appeal Nos. 157 and 147 of 2017 are hereby dismissed by confirming the conviction and sentence recorded against the appellants-accused Nos. 3 and 5 by judgment dated 31-12-2016 and 04-01-2017 in S.C.No. 60 2014 on the file of the Court of learned Special Judge for Trial of Offences under POCSO Act - cum - Additional Metropolitan Sessions Judge, Vijayawada. 16
So far as Criminal Appeal No. 994 of 2017 filed by the appellant- accused No. 1 is concerned, the same is dismissed by confirming the conviction and sentence recorded against the appellant-accused No. 1 for the offences under Section 384 IPC, Section 67-B of the Information Technology Act, 2000, Section 4 read with Section 3 (a) of POCSO Act and Section 12 read with Section 11 (i) of POCSO Act and so far as the offence under Section 376-D IPC is concerned, considering the age of the appellant-accused No. 1, while confirming the conviction recorded against him, the sentence is reduced from life imprisonment i.e. natural life to imprisonment for twenty years and also to pay a fine of Rs.2,00,000/-, in default to suffer simple imprisonment for a period of six months.
So far as Criminal Appeal No. 66 of 2017 filed by the appellant- accused No. 2 is concerned, the same is disposed of by upholding the judgment of conviction of the appellant-accused No. 2 dated 31-12-2016 but set aside the order on sentence dated 04-01-2017. Further, as the appellant-accused No. 2 at present would be more than 27 years old, there would be no requirement of sending him to the Juvenile Justice Board or any other child care facility or institution. The appellant- accused No. 2 shall be released forthwith.17
So far as Criminal Appeal No. 256 of 2017 filed by the appellant- accused No. 4 is concerned, the same is partly allowed by setting aside the conviction and sentence recorded against the appellant-accused No. 4 for the offence under Section 376 D IPC while confirming the conviction and sentence recorded against him for the other offences.
All the substantive sentences are directed to run concurrently. Sentence of imprisonment already undergone by the appellants- accused Nos. 1 and 3 to 5 shall be given set off under Section 428 Cr.P.C. Pending miscellaneous applications, if any, shall stand dismissed in consequence.
___________________ K.SURESH REDDY, J.
_______________________ K.SREENIVASA REDDY, J.
Date: 30-09-2024, JSK 18 HON'BLE SRI JUSTICE K.SURESH REDDY AND HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL APPEAL Nos. 66, 147, 157, 256 AND 994 OF 2017 (Common Judgment of the Division Bench delivered by Hon'ble Sri Justice K.Suresh Reddy) DATE: 30TH SEPTEMBER, 2024 JSK