Andhra Pradesh High Court - Amravati
Shaik Allabakshi, Guntur Dt., vs The State Of Ap., Rep Pp., on 2 May, 2025
Author: K Sreenivasa Reddy
Bench: K Sreenivasa Reddy
APHC010692292017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3497]
(Special Original Jurisdiction)
FRIDAY, THE SECOND DAY OF MAY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL APPEAL NO: 688/2017
Between:
Shaik Allabakshi, Guntur Dt., ...APPELLANT
AND
The State Of AP Rep PP ...RESPONDENT
Counsel for the Appellant:
1. SUREPALLI MADHAVA RAO
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
(Special Original Jurisdiction)
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
AND
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL APPEAL NO: 688 OF 2017
J U D G M E N T:(Per Hon'ble Sri Justice K.Sreenivasa Reddy) Accused in Sessions Case No.29 of 2016 on the file of the Special Judge constituted under the Protection of Children from Sexual Offences Act-cum-I Additional District and Sessions Judge, Guntur (for brevity 'the learned Special Judge'), is the sole appellant.
2. Charge sheet was filed against the accused for the offences punishable under Section 376 of the Indian Penal Code, 1860 (for brevity 'IPC') and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for brevity 'the POCSO Act'). Vide Judgment, dated 26.05.2017, the learned Special Judge convicted the accused of the offences punishable under Section 376 (2) IPC and Section 6 of the POCSO Act, 2012, and in view of Section 42 of the POCSO Act, 2012, sentence was imposed against the appellant/accused for the offence punishable under Section 376 (2) Page 3 of 29
(l) of the POCSO Act, 2012 by sentencing him to undergo rigorous imprisonment for life, which shall mean, imprisonment for the remainder of the accused person's life and to pay a fine of Rs.2,000/- (Rupees two thousand only) for the offence punishable under Section 376 (2) (l) IPC. The learned Special Judge further held that the victim girl is entitled for a sum of Rs.2,00,000/- (Rupees two lakhs only) payable by the District Legal Services Authority, Guntur under the Victim Compensation Scheme, as provided under Section 357A of the Code of Criminal Procedure, 1973 (for brevity 'CrPC').
3. The substance of the charges as against the accused is that, on 01.12.2013 at about 3.30 p.m. at Chinamatlapudi village, while P.W1 went outside along with her daughter, keeping her younger sister, who is victim minor girl, aged about 16 years, deaf and dumb suffering from 90% mentally disability, taking advantage of her loneliness, the accused committed rape and penetrative sexual assault over the said victim minor girl and thereby, accused committed the offences punishable under Section 376 IPC and Section 6 of the POCSO Act, 2012.
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4. Brief facts of the case of prosecution, are as follows:
(a) The accused is resident of Pedamatlapudi village of Nagaram Mandal; that the victim minor girl is resident of Chinamatlapudi village, she is deaf and dumb, suffering from 90% mental disability; that P.W1 is the second elder sister of the victim minor girl, and L.W2-Shaik Imam is the husband of P.W1.
(b) That the parents of the victim minor girl are blessed with two sons and three daughters and among them, the victim minor girl is the youngest one; that the parents and other elder brother of victim minor girl are no more; that the elder sister of the victim minor girl viz. Shaik Haseena married with one Mastan Vali and residing together at Chandole Mandal.
(c) That as the parents of the victim minor girl are no more and as she, being a mentally disabled, deaf and dumb person, P.W1 was taking care of her by keeping her in her house at Chinamatlapudi village; that L.W2-Shaik Imam, husband of P.W1 is working as a Carpenter at Hyderabad and used to visit home once in twenty days and as such, P.W1 and the victim minor girl were only residing in the house.Page 5 of 29
(d) While so, on 01.12.2013 at about 3.30 p.m., P.W1 left the victim minor girl in the house, locked the main gate of the compound wall and went to house of her younger brother-in-law viz.
Shaik Mastan; that in the meantime, the accused, who was present at the house of P.W1, noticed P.W1 leaving her house, entered into the house of P.W1 by scaling over the compound wall and found that the victim minor girl was alone in the house, and taking advantage of the same, the accused committed rape and penetrative sexual assault against the victim minor girl.
(e) At about 4.15 p.m. P.W1 returned to home and called the victim minor girl but, there was no response; that when P.W1 went near the bedroom and called the victim minor girl, she came out of the bedroom, weeping and made gestures showing the bedroom; that when P.W1 entered into the bedroom, she found the accused wearing his pant in a hurried manner and on seeing the same, P.W1 raised cries; that on hearing cries, P.Ws.2, 3, L.W5/Shaik Pyarima and L.W6/Shaik Ismael, who are immediate neighbours of P.W1, rushed to the house of P.W1 and caught hold of the accused; that when they questioned the accused, he admitted that he committed rape over the victim minor girl; that the accused escaped from the place of the incident while he was being Page 6 of 29 produced before the caste elders; that the accused left his cell phone on the cot in the house of P.W1; that on 01.12.2013 when the incident was informed to the masjid elders, the accused was summoned and he voluntarily admitted the commission of offence before the caste elders viz. L.W7/Shaik Karimulla, P.W4 and L.W9/Shaik Meera Vali and on that, considering the seriousness of the offence committed by the accused, P.W1 was advised to lodge a report before police.
(f) On 02.12.2013 at 5.00 a.m. P.W1 along with her husband L.W2/Shaik Imam, went to Nagaram Police Station and filed a report, narrating the entire incident occurred on 01.12.2013 at 3.30 p.m. Ex.P1 is the report. P.W10, Sub-Inspector of Police, Nagaram Police Station registered the said report as a case in Crime No.113 of 2013 for the offences punishable under Section 376 IPC and Section 6 of the POCSO Act, 2012 on 02.12.2013 at 5.00 a.m. Ex.P9 is the original FIR.
(g) During the course of investigation, on 02.12.2013 at 9.00 a.m. P.W11, Inspector of Police, Repalle Rural Circle visited the scene of offence, seized Black colour Nokia cell phone Model with SIM No.8790923822 in the presence of mediators L.W10- Shaik Karimullah and P.W5 under the cover of Scene Observation Page 7 of 29 Report. M.O1 is the Nokia Cell phone, Ex.P2 is the Scene Observation Report, dated 02.12.2013. P.W11 also got prepared rough sketch of the scene of offence. Ex.P10 is the rough sketch of scene of offence.
(h) P.W11 examined the witnesses and recorded their statements; that as the victim minor girl, being mentally disabled person, did not state anything about the incident, he could not record her statement; that P.W11 referred the victim minor girl for medical examination and also for age determination test.
(i) During the course of further investigation, P.W11 arrested the accused on 16.12.2013, subjected him to potency test and later, got him remanded to judicial custody. L.W18-P.Penchala Reddy, Inspector of Police, Repalle Rural Circle took up further investigation, after assuming charge; that on the request made by L.W18-P.Penchala Reddy, Inspector of Police, Repalle Rural Circle, P.W7, TGT of Government Residential School for Deaf and Dumb, Bapatla tried to record the statement of the victim minor girl by making gestures and reported that the victim minor girl is a mentally disabled child and she was unable to cooperate to his signs as she hears the speech but she could not answer with her signs and gestures.
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(j) P.W8, CAS, Community Health Centre, Repalle conducted medical examination over the victim minor girl, issued Wound Certificate opining that there is an evidence of cohabitation. Ex.P5 is the Wound Certificate of victim minor girl. P.W9, Assistant Professor, Department of Forensic Medicine, Guntur Medical College/GGH, Guntur conducted age determination test over the victim minor girl and issued report opining that the victim minor girl is aged between 16 and 17 years. Ex.P8 is the Certificate of opinion with regard to age of victim minor girl. L.W15-Dr. A.Udaya Bhaskar Reddy, Civil Assistant Surgeon, CHC, Repalle conducted potency test over the accused and issued report opining that the accused has potency to do sexual act. Ex.P7 is the Potency Test Certificate.
(k) After completion of entire investigation and after receipt of relevant documents, L.W18-P.Penchala Reddy, Inspector of Police, Repalle Rural Circle, filed charge sheet against the accused. Hence, the Charge Sheet.
5. In support of its case, the prosecution got examined P.Ws.1 to 11 and got marked Exs.P1 to P10 and M.Os.1 to 3. After conclusion of prosecution evidence, the accused was examined under Section 313 CrPC explaining the incriminating evidence brought on record against the accused. The accused denied the Page 9 of 29 same, but no evidence was let in and no document was exhibited on behalf of defence.
6. The plea of the accused is one of denial.
7. Learned Special Judge, after appreciation of entire oral and documentary evidence, vide Judgment dated 26.05.2017, convicted the accused of the offences punishable under Section 376 (2) (l) IPC and Section 6 of the POCSO Act, 2012 in terms of Section 235 (2) CrPC and by invoking the provisions of Section 42 of the POCSO Act, 2012, sentenced him to undergo rigorous imprisonment for life, which shall mean imprisonment for the remainder of the accused person's life and to pay a fine of Rs.2,000/- (Rupees two thousand only) for the offence punishable under Section 376 (2) (l) IPC. Challenging the conviction and sentence, accused preferred the present Criminal Appeal.
8. Learned counsel appearing on behalf of the appellant/ accused contends that the evidence of P.W1, who is elder sister of the victim minor girl, is not believable, as she is interested witness to the case of prosecution. Further, the evidence of other prosecution witnesses i.e. P.Ws.2, 3 and 4 is not trustworthy, as their evidence is only hearsay. There is no eyewitness to the Page 10 of 29 incident and the only eyewitness is the victim minor girl, and the prosecution failed to examine her. Though, the prosecution got examined P.W7, who is a TGT in the Government School for deaf and dumb, Bapatla, his evidence is no way helpful to the case of prosecution, as he exaggerated the incident basing on the signs given by the victim minor girl. Therefore, except the evidence of mediators and the investigating officer, there is nothing on record to believe the case of prosecution. Learned counsel further contends that there was delay in lodging FIR, which goes to the root of the case of prosecution. The prosecution miserably failed to prove the guilt of the accused beyond all reasonable doubt. Hence, prays the Court to set-aside the conviction and sentence passed by the learned Special Judge.
9. On the other hand, learned Additional Public Prosecutor submits that the victim minor girl is a deaf and dumb suffering 90% mental disability and though the prosecution could not examine her before the Court, the evidence of P.W1, who is the elder sister of the victim minor girl is suffice to prove the case of prosecution and her evidence is consistently supported by P.W7, who is a Teacher working in Government School for Deaf and Dumb and other material prosecution witnesses. Learned Additional Page 11 of 29 Public Prosecutor would further contend that the documentary evidence i.e. Ex.P5-Wound Certificate of victim minor girl and Ex.P7-Potency Certificate of the accused would clearly indicate that the accused committed rape over the victim minor girl as Ex.P5 certificate discloses that there was an evidence of cohabitation over the victim minor girl. The evidence of P.Ws.1 and 2 is suffice to prove that the victim minor girl was committed rape. There is nothing on record to tilt the case of prosecution. According to him, the Judgment of the learned Special Judge is a well-reasoned and calls for no interference by this Court. Hence, prays to dismiss the appeal.
10. Now the point for determination:
Whether the prosecution is able to bring home the guilt of the appellant herein/accused for the charges levelled against him beyond reasonable doubt and whether the conviction and sentence passed by the learned Special Judge is sustainable or not?
11. It is the contention of learned counsel for the appellant that as per the evidence of P.W1, who is none other than the elder sister of the victim girl, the victim girl was aged about 22 years and Page 12 of 29 whereas, the material prosecution witnesses i.e. P.W2, deposed in her cross-examination that the age of P.W1 as on the date of offence is about 22 years and the age gap between P.W1 and the victim girl was 2 years. Learned counsel for the appellant would further contend that even as per the medical evidence i.e. P.W9, Assistant Professor, Department of Forensic Science, Guntur Medical College, he opined that the age of the victim girl is between 16 and 17 years and for which the margin of two years is to be given, which shows that the victim girl is aged between 18 and 20 years. Therefore, according to the learned counsel, the victim girl is more than 18 years and thereby, the provisions of the POCSO Act, 2012 would not apply to the present case.
12. In this regard, the evidence of P.W1 is to the effect that the victim girl is her younger sister, she is a deaf and dumb, suffering from 90 percent mental disability and she was aged about 16 years as on 01.12.2013. In the cross-examination of P.W1, she conceded that she had not stated to police about the age of the victim girl as 16 years old. It is her evidence that the victim girl is immediate sister to her and the age gap between her and the victim girl is about two years. P.W1 concedes that the age of the victim girl Page 13 of 29 is 22 years and the age gap between her and the victim girl is two years.
13. Admittedly, when the learned Additional Public Prosecutor cross-examined P.W1, she concedes that she does not know the age gap between her and her sister i.e. the victim girl, and her parents would alone know the same; that there is a possibility that generally the parents maintain gap of about four to five years between each child.
14. P.W2, sister-in-law of P.W1 deposed in her chief- examination that as on the date of the commission of offence, the victim girl was aged about 16 years. In cross-examination of P.W2, she concedes that as on the date of the offence, P.W1 was aged about 22 years and was having a three year old female child and the age gap between P.W1 and the victim girl is two years.
15. The crucial evidence with regard to determining the age of the victim girl is the evidence of P.W9, who is Assistant Professor, Department of Forensic Science, Guntur Medical College, Guntur. He deposed in his chief-examination that on 05.12.2013 at about 3.00 p.m., he conducted age estimation of the victim girl and sent her for X-ray test and after receipt of X-ray, he Page 14 of 29 gave Ex.P8-final report. According to him, basing on the physical, dental and radiological examination, the age of the victim girl is between 16 and 17 years. In the cross-examination, P.W9 conceded that the growth of the victim girl is not as that of a normal person. He denied the suggestion that victim girl is aged about more than 22 years.
16. A perusal of recitals of Ex.P8-Certificate of Opinion of Age issued by P.W9, Assistant Professor, he examined the victim girl and on physical, dental and radiological examination, it was determined that the age of the victim girl was between 16 and 17 years as on the date of his examination i.e. on 05.12.2013. Though, at one stage, the evidence of P.W1 is to the effect that her sister i.e. the victim girl was aged 22 years, the same witness, while she was cross-examined by the learned Additional Public Prosecutor, deposed that she does not know the gap of years between her and the victim girl. She further deposed that there is possibility that generally the parents would maintain gap of about four to five years between each child. Indisputably, as per the evidence of P.W1, her age as on the date of her examination before the learned Special Judge, is about 22 years. Basing on the same, as on the date of the subject incident i.e. on 01.12.2013, the age of P.W1 was 18 years. Page 15 of 29 When the age of P.W1 as on the date of commission of offence is 18 years, the victim girl, being younger sister of P.W1, would obviously be 16 years. Even as per the evidence of P.W1 the age gap between her and her younger sister i.e. the victim girl, is about two years. Furthermore, as per the medical evidence i.e. P.W9, the age of the victim girl as on the date of commission of offence is between 16 and 17 years. Therefore, this Court has no hesitation to hold that the victim girl is a minor as on the date of the commission of offence and the provisions of the POCSO Act, 2012 would come to rescue of the victim girl.
17. Learned counsel for the appellant would contend that though the victim girl is a deaf and dumb person suffering from mental disability at 90%, as per the evidence of material prosecution witnesses the victim girl explained about the commission of offence by way of signs, as such, the evidence of the victim girl can be recorded as per the procedure contemplated under Section 119 of the Indian Evidence Act, 1872, but the prosecution failed to examine the victim girl. Therefore, when the prosecution failed to examine the victim girl before the learned Special Judge, the conviction and sentence, basing on the evidence of P.Ws.1 to 3, whose evidence is hearsay, is not tenable. Page 16 of 29
18. Learned Additional Public Prosecutor for the State would contend that the victim girl is none other than the younger sister of P.W1, and she, being a deaf and dumb girl, was suffering from 90% mental disability, and P.W1 was taking care of her and during temporary absence of P.W1, the appellant committed rape against the victim girl by scaling over the compound wall and when P.W1 returned home, she witnessed the presence of appellant wearing pant and shirt in a hurried manner and the victim girl came out from the bedroom and she made signs, narrating the occurrence of offence. P.W1, who was residing with the victim girl, can understand her signs, therefore, the evidence of P.W1 is reliable and trustworthy. Learned Additional Public Prosecutor would further contend that the evidence of P.W7, who is working as Teacher in TGT Government School for Deaf and Dumb, Bapatla clearly deposed that the signs given by the victim girl indicate that the victim girl was sexually exploited by someone. Therefore, the evidence of all the material prosecution witnesses clearly establishes the guilt of the appellant beyond all reasonable doubt.
19. A perusal of the evidence of P.W1 would go to show that the victim minor girl is mentally disabled, deaf and dumb and she is under her care and custody. Her evidence further goes to Page 17 of 29 show that on 01.12.2013 she along with her minor daughter went to her brother-in-laws house viz. Mastan at about 3.30 p.m. by locking the compound wall gate, keeping the victim girl inside the house, alone; that at about 4.15 p.m. when she entered into the house and approached near the bedroom, the victim minor girl was crying and came out from the bedroom. It is her further evidence that when she went into the bedroom, she found the accused wearing pant and shirt in a hurried manner. In the cross-examination of P.W1, learned defence counsel tried to elicit that the accused did not commit any offence by putting a suggestion to her, but the same was denied by P.W1. As per the evidence of P.W1, whenever she goes outside, she used to take the victim girl and her daughter along with her. However, while P.W1 was cross-examined by the learned Additional Public Prosecutor, she deposed that she used to go outside occasionally and during such time, she regularly takes the victim girl along with her, but basing on the need, she used to keep her in the home.
20. A perusal of the entire evidence of P.W1, who is none other than the elder sister of the victim girl, goes to show that though she is not an eyewitness to the incident, subsequent to the incident, when she visited her house, she found the victim girl Page 18 of 29 crying coming out of the bedroom and she witnessed the accused wearing the pant and shirt in a hurried manner. The evidence of P.W1 further goes to show that when she shouted and screamed out of fear, all her neighbours and other persons gathered there and among them P.Ws.2 and 3 were also present.
21. P.W2 deposed in her chief-examination that P.W1 is her sister-in-law and she knows the victim girl, she is a deaf and dumb, suffering from 90 percent mental disability; that the victim girl is staying with P.W1 and she alone was looking after the victim minor girl. With regard to incident proper, P.W2 deposed in her chief-examination that on 01.12.2013 at about 4.15 p.m. while she was passing by the house of P.W1 to purchase groceries, she heard screaming of P.W1 from her house and when she, along with P.W3, L.W5-Shaik Pyarima and L.W6-Shaik Ismael went into the house of P.W1, they saw P.W1 crying; that their inquiry revealed about the commission of offence. Her evidence further discloses that in the bedroom, they found the accused standing in the corner and when they questioned the accused as to why he entered into the house, the accused confessed before them that he committed rape on the victim girl and pleaded mercy; that they observed the victim girl dress with stains and the accused was wearing the shirt Page 19 of 29 in a hurried manner. She further deposed that while they were taking the accused to produce before the Masjid elders, he escaped from them. In the cross-examination of P.W2, nothing concrete could be elicited to discredit her testimony.
22. P.W3, who is a Ward Member deposed in her chief- examination that she knows the victim girl, she is a deaf and dumb suffering from 90% mental disability; that the victim girl is staying with her elder sister, P.W1; that she knows P.W1 and the victim girl, as they are residents of her ward. With regard to the incident proper, she reiterated the version as spoken by P.W2. In the cross- examination, P.W3 deposed that she was working as a Ward Member for the last more than fifteen years; that the victim girl and their family members belonged to her ward and she knows all the residents of her ward; that she had not lodged any complaint, but she stated to P.W1 to lodge the complaint on arrival of husband of P.W1. It was suggested to her that during that period there was elections and as the accused did not support her and supported the opposite party, she got foisted a false case against the accused, but the same was denied.
23. A perusal of entire evidence of P.Ws.2 and 3, who are circumstantial witnesses, they in one voice deposed the events that Page 20 of 29 occurred subsequent to the incident. Though, they have not witnessed the commission of offence, on hearing the screams of P.W1, they entered into the house of P.W1 and on inquiry, they learnt that the victim girl was alone kept in the house during the temporary absence of P.W1 and taking advantage of loneliness of the victim girl, the accused entered into the house of P.W1, committed rape over the victim girl. Their evidence further goes to show that they witnessed the presence of accused, who was wearing pant and shirt in a hurried manner, in the bedroom and the victim girl was found crying. Their evidence would further reveal that when they questioned the accused as to why he was present in the house of P.W1, the accused confessed about commission of offence and while they were about to produce the accused before the Masjid elders, the accused took to his heels from that place. This Court did not find any lacunae in the evidence of P.Ws.2 and 3 and it corroborates the version of P.W1 and their evidence is consistent and cogent with regard to the incident proper.
24. Another crucial witness is P.W4, who is one of the masjid elders. His evidence is to the effect that on 01.12.2013 at about 6.00 p.m. P.Ws.1 to 3 along with victim minor girl and others came to masjid and informed about commission of rape by the Page 21 of 29 accused over the victim minor girl. His evidence is further to the effect that at about 8.30 p.m. the accused was summoned and when he was questioned about the said offence, he confessed about the commission of offence and pleaded mercy. He further deposed that as the offence is serious in nature, P.W1 was advised to approach the police and to lodge a report. In the cross- examination of P.W4, he deposed that he had not stated to police about the timings as to when P.W1 and the victim girl came to masjid and when the accused was questioned. He denied the suggestion that P.W1 along with victim girl never approached him for the masjid elders and they never questioned the accused as to the said offence and that as the victim girl and P.W1 are residents of their area, he was deposing false to help them.
25. A perusal of entire evidence of P.W4 goes to show that though his evidence with regard to the commission of offence is hearsay; his evidence with regard to events subsequent to commission of offence, i.e. summoning the accused by the Masjid elders and confession made by the accused about commission of offence before the Masjid elders and in turn, they advising P.W1 to lodge a report against the accused, would all strengthen the version Page 22 of 29 spoken to by P.Ws.1 to 3. There is nothing on record to disbelieve the evidence of P.W4.
26. Admittedly, the victim girl was not examined before the learned Special Judge, as she being a deaf and dumb person suffering from 90% mental disability. Learned counsel for the defence though contended that the evidence of victim girl can be extracted as per the procedure contemplated under Section 119 of the Indian Evidence Act, 1872, such instance arise only when the witness is unable to communicate verbally and it allows a witness who cannot speak to give their evidence in any other intelligible manner, such as by writing or using signs. P.W7, who is Teacher in TGT Government School for Deaf and Dumb, Bapatla, with whose assistance, the victim girl was examined by the Investigating Officer. According to him, during his examination, the victim girl made some signs and those signs depict that while she was alone at home, some person came and sexually exploited and outraged her modesty. His evidence is further to the effect that though the victim girl is 90 percent mentally retarded and cannot express orally; she made some signs showing her private parts and expressed that somebody had exploited her private parts. In the cross-examination of P.W7, he deposed that he mentioned in Page 23 of 29 Ex.P6-statement that the victim girl hears the speech but she could not spell signs and gestures.
27. A perusal of evidence of P.W7 goes to show that during pendency of investigation, he examined the victim girl in the presence of the Investigating Officer and she made some signs showing her private parts, which clearly indicate that she was sexually exploited by someone. During examination of P.W7, the victim girl was produced before the Court and when she was shown to P.W7, he admitted that the person showed to him is the victim girl, whom he examined during investigation and such version is not denied by P.W1, who is none other than elder sister of victim girl. When the evidence of P.W7, who is working as a Teacher in a Deaf and Dumb School, clearly goes to show that basing on the signs made by the victim girl, she was exploited by someone, and the said version coupled with the evidence of P.W1 supported by P.Ws.2 to 4 would go to show it is the accused who exploited the victim girl sexually taking advantage of her loneliness on 01.12.2013. Therefore, non-examination of the victim girl before the learned Special Judge is not a ground to disbelieve the entire evidence of material prosecution witnesses.
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28. Learned counsel for the appellant would contend that as per the medical evidence i.e. P.W6, there are no external injuries on the private parts of the victim girl and the victim girl is accustomed to frequent sexual intercourse. He further submits that the prosecution failed to take steps to establish that the stains of semen belonged to the appellant, and when such is the evidence, the appellant is entitled for a clean acquittal.
29. In this regard, a perusal of the evidence of P.W6, Assistant Professor, Anaesthesiology Department in Siddhartha Medical College, Vijayawada, discloses that she examined the victim girl and found that hymen was not intact and admits two fingers (index and middle fingers) freely and she did not find external injuries over the body of the victim girl. According to her, human semen spermatozoa was detected in item Nos.1 to 5 and she opined that there is an evidence of cohabitation. In the cross- examination, P.W6 deposed that there is no sign of forcible intercourse and also no injuries are found on the private parts of the victim girl. In further chief-examination of P.W6, she deposed that the victim girl being mentally disabled, did not protest when she examined her. According to her, generally such mentally disabled children never cooperate for medical examination. She fairly Page 25 of 29 deposed that the victim girl was neither shy nor expressed any such feelings.
30. A perusal of the evidence of P.W6 goes to show that there are no external injuries on the private parts of the victim girl, but mere absence of external injuries on the private parts of the victim girl does not entitle the accused for acquittal, for the reason that, P.W6 opined that there is an evidence of cohabitation. Further, P.W6 opined that there is possibility of ascertaining the culprit blood group from the semen spermatozoa. If such examination was not conducted by the RFSL concerned, it is not a fatal to the case of prosecution. The entire evidence of material prosecution witnesses consistently proves that the accused made penetrative assault over the victim girl and mere not taking steps by the prosecution for non- examination of stains of semen to prove as to whether it belonged to accused or not, does not entitle the accused to pave for acquittal.
31. Though learned defence counsel put-froth suggestions to the material prosecution witnesses and also the Investigating Officer that due to political disputes between Pedamatlapudi and Chinamatlapudi villages, the present false case was foisted against the accused, it was denied. There is nothing on record to believe that a false case was foisted against the accused due to political Page 26 of 29 disputes and there is also nothing on record to disbelieve the entire evidence of all the material prosecution witnesses and it is consistent, cogent and convincing in all aspects. Indeed, the recovery of M.O1-Nokia cell phone was established by the prosecution by adducing the evidence of P.W5, Village Revenue Officer, Chinamatlapudi, Nagaram Mandal. Nothing is elicited by the defence to believe that M.O1/cell phone was not seized from the scene of offence.
32. Though learned counsel for the appellant would contend that there was delay in lodging FIR, such delay was clearly explained in the evidence of P.W1. As per the evidence of P.W4, the masjid elders, considering the seriousness of the offence committed by the accused, P.W1 was advised to lodge a report before police. The evidence of P.W1 would disclose that soon after knowing the commission of offence, she informed the incident to her husband viz. L.W2-Shaik Imam, who is working as Carpenter in Hyderabad and she waited for his arrival and on his arrival, she along with her husband accompanied to the police and presented Ex.P1-report against the accused. Delay in lodging FIR is explained in the evidence of P.W1 coupled with the evidence of P.W4 and though there is a time gap between the time of occurrence of the Page 27 of 29 incident and lodging the police report, it is not fatal to the case of prosecution and it does not go to the root of the case of prosecution.
33. In a case of this nature involving sexual exploitation of a minor, where the dignity and honour of the family are involved, it is natural for a person to wait till arrival of elder of the family and some deliberations are bound to occur before lodging a report to the police. So, mere time gap of one day in lodging the report, in a case of this nature, is not fatal to the case of prosecution and the same is satisfactorily explained by the prosecution witnesses.
34. Though there are some contradictions and discrepancies in the evidence of material prosecution witnesses, that itself is not a ground to doubt the credibility and veracity of their evidence and the Court has to look into as to whether such contradictions and omissions would seriously affect the case. Therefore, this Court has no hesitation to hold that the learned Special Judge, on proper appreciation of entire oral and documentary evidence on record, had rightly found the accused guilty of the offences and accordingly, convicted the accused of the charges levelled against him, which warrants no interference by this Court.
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35. With regard to quantum of sentence, learned Special Judge considering the plea of the accused and nature of the offence, sentenced to undergo rigorous imprisonment for life, which shall mean imprisonment for the remainder of the accused person's life and to pay a fine of Rs.2,000/- (Rupees two thousand only) for the offence punishable under Section 376 (2) (l) IPC. Apparently, the appellant/accused, as on the date of the Judgment, was aged about 54 years. The appeal was filed in the year 2017 and at present, the appellant is aged about 62 years. Having regard to the entire gamut of facts and circumstances and considering the age of the appellant/accused, the sentence of rigorous imprisonment for life, which shall mean imprisonment for the remainder of the accused person's life is modified to rigorous imprisonment for life. The sentence of imposition of fine of Rs.2,000/- (Rupees two thousand only) remains intact.
36. In the result, the Criminal Appeal No.688 of 2017 is dismissed confirming the Judgment, dated 26.05.2017 passed in Sessions Case No.29 of 2016 by the learned Special Judge constituted under the Protection of Children from Sexual Offences Act-cum-I Additional District and Sessions Judge, Guntur, modifying the sentence of rigorous imprisonment for life, which shall mean Page 29 of 29 imprisonment for the remainder of the accused person's life to rigorous imprisonment for life.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
JUSTICE K. SREENIVASA REDDY JUSTICE T. MALLIKARJUNA RAO nd 2 May, 2025 DNB