Telangana High Court
Chandeti Sudhakar, Warangal Dt. vs State Of Telangana, Rep. By P.P., Hyd on 29 April, 2020
Author: A. Abhishek Reddy
Bench: Raghvendra Singh Chauhan, A.Abhishek Reddy
THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HONOURABLE SRI JUSTICE A. ABHISHEK REDDY
CRIMINAL APPEAL No. 1204 OF 2014
JUDGMENT:{ Per the Hon'ble the Chief Justice Raghvendra Singh Chauhan } The appellant has challenged the judgment dated 02.09.2014 passed by a Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act-cum-I Additional Sessions Judge, Warangal, whereby the appellant has been convicted, for offences under Sections 366 and 376(2)(i) IPC, and under Section 5(k) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, for short), and sentenced to life imprisonment under Section 5(k) read with Section 6 of the POCSO Act, and further directed to pay fine of Rs.50,000/-, out of which Rs.45,000/- shall be paid to the victim as compensation, and further sentenced to three years rigorous imprisonment for offence under Section 366 IPC, and fined with Rs.500/-, in default, further directed to undergo simple imprisonment for one month. Since the appellant was convicted, and sentenced under the POCSO Act, he has not been sentenced for offence punishable under Section 376(2)(i) IPC. Both the sentences were directed to run concurrently.
Briefly, the facts of the case are that on 07.07.2013, at 1:00 p.m., Oruganti Mallaiah (P.W. 3) filed a written report before the S.I., of Police, P.S., Lingala Ghanpur, wherein he claimed that "I have been surviving in Kundaram village by doing agriculture. I am blessed with three heirs i.e., two daughters and one son. My eldest daughter by name Ms. X (name withheld) is deaf and dumb by birth who studied upto 10th standard at Kundaram village school. She is pursuing Intermediate 1st year ..., and staying in a 2 Government Hostel who returned home during summer vacation and who went regularly as a labourer to agriculture fields. Yesterday, i.e., on 06.07.2013, my daughter went to cotton-crop for plucking the weeds accompanied by Oruganti Prameela, W/o Laxminarsu, Anthagalla Vijaya, W/o Narsinga Rao, Oruganti Iylamma and Chandeti Sudhakar, S/o Yadaiah, and never returned home in the evening after concluding daily labour. I had enquired with Oruganti Prameela, W/o Laxminarsu for the whereabouts of my daughter who told me that my daughter returned home in the evening. I went to cotton crop field and enquired the whereabouts of my daughter with other labourers and they revealed that my daughter returned in the evening along with other labourers. I noticed the absconsion (sic) of Chandeti Sudhakar, S/o Yadaiah from home who accompanied my daughter to the cotton crop field for plucking the weeds regularly as a daily labourer who maintained intimacy with my daughter for a long time and hence I suspect that my daughter is kidnapped by Chandeti Sudhakar and I request your good offices to do justice to me."
On the basis of the said complaint, a formal F.I.R., namely F.I.R. No. 130 of 2013 was initially registered for offence under Section 366 IPC. However, subsequently with the recovery of the victim, offences under Section 376(2) IPC, and Section 5(k) read with Section 6 of the POCSO Act, were added.
During the course of the investigation, the appellant was arrested, and put up for trial. In order to support its case, the prosecution examined seventeen witnesses, submitted eighteen documents, and furnished three articles. The defense neither examined any witness, nor submitted any document. After completion of the trial, the learned Trial Court convicted, and 3 sentenced the appellant as aforementioned. Hence, this appeal before this Court.
The learned counsel for the appellant has raised the following contentions before this Court:-
Firstly, the impugned judgment is based on surmises, and conjectures. It lacks critical assessment of the evidence, which was produced by the prosecution.
Secondly, merely because the victim is a deaf and dumb girl, the learned Trial Court has treated her as permanently physically disabled, and has adopted the procedure under Section 164 (5A)
(b) of the Code of Criminal Procedure (CrPC). However, the learned Trial Court has ignored the fact that according to the victim herself, she studied upto SSC. And according to M. Gopal Kishan (P.W. 10), the Principal of the College where the victim was studying, the victim was studying in the Ist year Intermediate in Computer Graphics and Animation Group. Therefore, she was competent to be a witness. Hence, the procedure under Section 164 (5A) (b) of CrPC need not be adopted by the learned Trial Court.
Thirdly, according to the victim's statement recorded under Section 164 CrPC, she herself had accompanied the appellant to Nawabpet where she claimed that the appellant had married her in a temple by applying Sindhur on her forehead. Hence, the offence under Section 366 IPC is not made out against the appellant.
Fourthly, although the victim claimed that the appellant and she participated in sex, her testimony is not corroborated by Dr. Ch. Sravanthi (P.W. 16). For, according to Dr. Ch. Sravanthi (P.W. 16), there was "no recent sexual intercourse". Indeed, even the hymen was intact. Therefore, the appellant has wrongly been 4 convicted for offence under Section 5(k) read with Section 6 of the POCSO Act.
Lastly, the appellant was 21 year old, while the victim was 15 year old. Even according to O. Mallaiah (P.W. 3), the victim's father, there was an intimacy between the appellant, and the victim. The victim had accompanied the appellant of her own free will. Therefore, it is a case of elopement. Hence, the learned Trial Court is not justified in imposing the harshest of the punishment under Section 5(k) read with Section 6 of the POCSO Act. Furthermore, the victim is presently happily married. Therefore, no meaningful purpose would be served by incarcerating the appellant for an act of love. Thus, the appellant should either be acquitted, or at worse, the sentence should be reduced to the period as already undergone.
On the other hand, the learned Additional Public Prosecutor has vehemently opposed the arguments of the learned counsel for the appellant. She has raised the following counter-contentions:-
Firstly, it is not just a crime against a woman, but most importantly it is a crime against a deaf and dumb girl child.
Secondly, admittedly the victim is a deaf and dumb girl. Therefore, she is physically challenged. According to Section 164(5) of the CrPC, "any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case, and the Magistrate shall have power to administer oath to the person whose statement is so recorded." Moreover, according to Section 164(5A)(a), "in cases punishable either under outraging the modesty of a woman, or under rape, and different aspects of both these 5 offences are alleged to have been committed", "the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub- section (5), as soon as the commission of the offence is brought to the notice of the police". Furthermore, the proviso to sub-section (5A)(a) clearly states that if a person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of the interpreter or a special educator in recording the statement under Section 164(5A)(a) of CrPC. Furthermore, by following the said procedure, no prejudice has been caused to the appellant as the appellant has been given ample opportunity to cross-examine the victim. In fact, the victim has been subjected to a lengthy cross-examine by the defense counsel.
Thirdly, since the victim was merely 15 year old, the question of her giving consent for accompanying the appellant would not arise.
Fourthly, even if the testimony of the prosecutrix is not supported by medical evidence, even then her statement that the appellant had physical relationship with her cannot be disbelieved.
Fifthly, Section 3 of POCSO Act defines "penetrative sexual assault" to mean "the penetration of a penis to any extent". Therefore, it is not essential that the hymen should be broken. Moreover, Section 5 of the POCSO Act deals with "aggravated penetrative sexual assault". Section 5(k) clearly states that whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child, such a person would be guilty of "aggravated penetrative sexual assault". Therefore, as the victim was a deaf and dumb child, a physically 6 challenged child, the penetrative sexual assault done upon her by the appellant would fall within the category of 'aggravated penetrative sexual assault'. Hence, the learned Trial Court was justified in convicting the appellant for offence under Section 5(k) read with Section 6 of the POCSO Act.
Lastly, since the appellant has committed an offence under the POCSO Act, that too on a physically challenged child, the case does fall within the category of "rarest of the rare case". Hence, the learned Trial Court was justified in sentencing the appellant to life imprisonment. Therefore, the Additional Public Prosecutor has supported the impugned judgment.
Heard the learned counsel for the parties, perused the impugned judgment, and examined the record.
Section 164(5A)(a) of CrPC is as under:
In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub- section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Therefore, the provision provides a special procedure for recording of the evidence of a person, who has been subjected to sexual assault, in its different forms, and who is mentally or physically, temporarily or permanently disabled.
A bare perusal of the provision clearly reveals that it deals with the fact that the victim may be physically challenged, or mentally challenged, temporarily, or permanently. Therefore, 7 merely because the victim may have studied upto SSC, or may be studying in the Ist year of Intermediate, would not take her out of the category of being a "physically challenged person". Therefore, the learned Trial Court was certainly justified in recording the statement of the victim under Section 164(5A)(a) of CrPC.
Moreover, the learned counsel for the appellant has failed to establish the fact that the appellant has been prejudiced by the adoption of the said procedure. Therefore, the appellant is unjustified in complaining against the adoption of the said procedure. Most importantly, the appellant was given ample opportunity to cross-examine the prosecutrix, which indeed he did to quite a length. But despite the lengthy cross-examination, the prosecutrix has not been shattered in the cross-examination. Therefore, the contention raised by the learned counsel for the appellant that the procedure adopted under Section 164(5A)(a) of CrPC should not have been adopted, is clearly unacceptable.
O. Mallaiah (P.W. 3) clearly states in his examination-in-chief that the victim is his daughter, who has studied upto tenth class. Thereafter, she has joined a Deaf and Dumb College. She was staying in the hostel. "Whenever she used to come to village on holidays, she used to attend some coolie work. On the date of incident, P.W.1 (the victim) went to coolie work along with one Prameela, Vijaya, Ilamma. But on the same day during the evening, P.W.1 did not return home. I went to the house of Prameela, and enquired her. She informed me that P.W.1 already left the village and that she accompanied the accused. The accused is also resident of my village. I searched for my daughter. On the next day, I went to the P.S., and presented a complaint at about 2:00 p.m. On the same day of complaint, I found P.W.1 and accused at Jangaon on 8 Hyderabad-Hanamkonda road. We caught them and produced before DSP, Jangoan. On enquiry, P.W.1 informed us by way of gestures that the accused caught her and took her away to Jangaon." Similar is the testimony of O. Mallamma (P.W. 4), the mother of the victim, and O. Pooja (P.W. 5), the sister of the victim.
According to the victim herself in the statement recorded under Section 164 CrPC, she informs the Court that "I am studying Intermediate 2nd year at Deaf and Dumb School. I have been to my home town for vacation which is Kundaram village of Lingama Ghanpur Mandal of Warangal District. On 06.07.2013, I along with my relatives went out for work in cotton fields. After we finished our work, one by name Sudhakar, who also belongs to Kundaram village came to me and offered Taddy to drink. I drank some amount of taddy, and threw the remaining. Sudhakar began telling me that he liks me, and he wants to marry me, saying so he had taken me near the temple in Nawabupeta, there he applied Sindhur on my forehead and told me that from now I am his wife, and that he will take care of me and my children born out of our relationship. Upon making these statements, he participated in sex with me, and that was late in the night. On the next day, i.e., on 07.07.2013 in the morning, both of us went to Hyderabad, and returned to Jangaom on the same evening. When I reached Jangaom Railway Station, my parents received me and they had taken me home." In her cross- examination, she denies the suggestion that the appellant never participated in sex with her. She further reiterates that "the accused came to her and called her, and since she knows him, she followed him to the temple that the accused affixed kumkum on her forehead and stated that he married her and that he hugged her." 9
According to A. Chandra Reddy (P.W. 9), the Headmaster of ZPSS, Kundaram village, as per school records, the date of birth of the victim was 10.04.1997. He has proven the date of birth certificate (Ex. P. 7), and the attested copy of the school admission register (Ex. P. 8). Thus, according to the documentary evidence, the victim was sixteen year old at the time of occurrence. Since she was a minor, the question of her giving consent to accompanying the accused would not arise. Therefore, the learned counsel for the appellant is unjustified in claiming that since the victim had "accompanied the appellant on her own volition", the offence under Section 366 IPC is not made out.
Section 366 IPC is as under:
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.
Since the victim in the present case is a minor, she has been kidnapped by the appellant. According to the victim, the appellant had taken her to a temple, and applied Sindhoor on her forehead, and he claimed that he had married her. Therefore, he had the intention to marry the victim. However, as she is not of an age where she could have given the consent for her own marriage, obviously the marriage is against her will. Moreover, since according to the victim, there is a physical relationship between 10 her and the appellant, and since the victim is not in a position to give consent for sexual intercourse, the ingredients of offence under Section 366 IPC are clearly made out. Hence, the learned Trial Court was justified in convicting the appellant for the said offence.
The learned counsel for the appellant is unjustified in claiming that the victim's testimony is not corroborated by medical evidence. For, according to the medical examination of the victim, (Ex.P. 16), she did have an abrasion on the right thigh. Therefore, the said injury clearly reveals that she had been subjected to some force. Moreover, even if the hymen is intact, for the purpose of Section 3 of the POCSO Act, penetrative sexual assault is deemed to be committed if there is a penetration of penis to any extent. Hence, there is no requirement in law that the penis must enter the vagina to the extent that it must break the hymen. Furthermore, in a catena of cases, the Hon'ble Supreme Court clearly opined that even if the testimony of the prosecutrix is not buttressed by medical evidence, even then the conviction for rape/penetrative sexual assault can be recorded on the basis of the testimony of the prosecutrix herself, provided her testimony has a ring of truth.
In the present case, the prosecutrix has clearly stated that she was taken by the appellant under the belief that he will marry her, the appellant did play the charade of marriage. It is only under the bona fide belief that she had been married that the victim had physical relationship with the appellant. However, as the victim is a minor, she could not have given consent either for marriage, or for a physical relationship. Most importantly, the victim has not exaggerated any of the facts. Therefore, the victim is 11 a trustworthy witness. Hence, there is no reason to doubt the truthfulness of her deposition. Thus, the learned Trial Court was justified in convicting the appellant for offence under Section 5(k) read with Section 6 of the POCSO Act.
The only issue before this Court is with regard to the extent of sentence, which should be imposed upon the appellant. It is, indeed, a settled position of law that the harshest of the punishment should be imposed only when the case falls within the category of "rarest of the rare case". Section 6 of the POCSO Act while prescribing a minimum of ten years of sentence extends the sentence to imprisonment for life. However, before the maximum punishment of imprisonment for life can be imposed, the case must necessarily fall within the category of "rarest of the rare case".
In the present case, undoubtedly the victim is a deaf and dumb girl. However, even in the complaint filed by O. Mallaiah (P.W. 3), he has clearly stated that "there was a long intimacy between the appellant, and the victim". Moreover, even in his testimony, he does admit that the appellant is a person who lives in the same village. According to O. Mallaiah (P.W. 3), the appellant also used to come to the cotton fields with the victim and others. Further, according to the victim, she not only knows the appellant, but she also had toddy with him. Subsequently, she not only went to the temple, but also travelled with the appellant to Hyderabad. Moreover, the appellant was 21 year old young man. Thus, there is a great possibility of an intimacy developing between the appellant, and the victim. Furthermore, having taken the victim with him, from the village to Hyderabad, and back from Hyderabad to the village, the appellant has not abused, or maltreated the victim to 12 any extent. The only allegation against the appellant is that he had a physical relationship with the victim after having undergone a "deemed marriage" in a temple. Moreover, since the victim has not suffered any grave injuries, even in her private parts, the case does not fall within the category of rarest of the rare case. Hence, the learned Trial Court is not legally justified in imposing the harshest of the punishment.
Therefore, for the reasons stated above, the Criminal Appeal is partly allowed. While the conviction for offence under Section 366, 376(2)(i) IPC, and under Section 5(k) read with Section 6 of POCSO Act, is upheld, the sentence imposed for the offence under Section 5(k) read with Section 6 of POCSO Act is reduced from life imprisonment, to ten years rigorous imprisonment. The fine is not interfered with.
Since the sentence as modified by this Court is ten years rigorous imprisonment, the appellant is required to serve the remaining part of his sentence.
Miscellaneous petitions, if any, pending shall stand dismissed.
______________________________________ (RAGHVENDRA SINGH CHAUHAN, CJ) __________________________ (A. ABHISHEK REDDY, J) 29th April, 2020 pln 13 THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN AND THE HONOURABLE SRI JUSTICE A. ABHISHEK REDDY CRIMINAL APPEAL No. 1204 OF 2014 (Per Hon'ble the Chief Justice Raghvendra Singh Chauhan)
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