Telangana High Court
Sayeed Aleem vs The State Of Telangana on 17 August, 2021
Author: G.Sri Devi
Bench: G.Sri Devi
HONOURABLE JUSTICE G.SRI DEVI
CRIMINAL APPEAL No.1026 of 2019
JUDGMENT:
This appeal is directed against the judgment of the learned Special Sessions Judge for Trial of Cases under Protection of Children from Sexual Offences Act-cum-I-Additional Sessions Judge, Adilabad, in Spl.S.C.No.104 of 2016, dated 28.10.2019, whereby the appellant/accused was found guilty of the offences punishable under Section 5 (m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 376 (2) (i) of I.P.C. and accordingly convicted and sentenced to undergo rigorous imprisonment for a period of Ten years and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for a period of one month for the offence punishable under Section 5 (m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act"). No separate sentence is imposed for the offence punishable under Section 376 of I.P.C. in view of Section 42 of the POCSO Act, which provides for alternate punishment.
2. The case of the prosecution, in brief, is that on 05.08.2016 P.W.1 lodged a complaint with the police stating that on 05.08.2016 at about 5.00 P.M., while his second daughter i.e., victim girl, aged about 12 years, was playing with cycle in the surroundings of his house, accused stopped the victim girl by offering to give playing 2 GSD, J Crla_1026_2019 stickers and money and accordingly the victim went to the accused, who took her into an auto, which is in front of his house, hugged her by pressing her breast and from there he dragged her into his house, closed the doors, removed her pant, laid down her on the ground and raped her forcibly by pressing her breast and thereafter the victim girl went to her house and informed the incident to her father (P.W.1). Basing on the said complaint (Ex.P1), P.W.11-Assistant Sub Inspector of Police, Adilabad Rural, registered a case in Crime No.146 of 2016 for the offences punishable under Section 354-B of I.P.C. and Section 12 of the POCSO Act, examined and recorded the statement of P.W.1. Thereafter, the section of law was altered to Section 376 (2) (i) of I.P.C. and Section 4 of the POCSO Act. The statement of P.W.2 was recorded by P.W.10-Sub Inspector of Police, which was videographed by P.W.4. On receipt of Ex.P11-F.I.R, P.W.12-Inspector of Police, Adilabad Rural, took up the investigation, recorded the statements of the witnesses, visited the scene of offence, prepared Crime Details Form and drew its rough sketch in the presence of P.W.6 and another. Ex.P4 is the C.D.F. along with rough sketch; thereafter recorded the statements of P.Ws.4 to 10; collected Ex.P3-Bonafide certificate of the victim girl from P.W.5; sent P.W.2/victim girl for medical examination; arrested the accused, recorded the confessional statement of the accused in the presence of P.W.7 and another and seized one cut-drawer from the possession of the accused and sent requisition for conducting 3 GSD, J Crla_1026_2019 potency test of the accused and collected the potency certificate; got recorded the statement of P.W.2 under Section 164 of Cr.P.C. After completion of investigation and collecting all the material papers, he filed a charge sheet, which was taken cognizance as Spl.S.C.No.104 of 2016.
3. On appearance of the accused, charges under Section 376 (2)
(i) of I.P.C. and Section 5 (m) read with Section 6 of the POCSO Act, were framed against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
4. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P1 to P12 and M.Os.1 and 2. After closure of evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. Neither oral nor documentary evidence was adduced on behalf of the accused.
5. After considering the oral and documentary evidence on record, the learned trial Judge found the accused guilty of the offences with which he was charged and accordingly convicted and sentenced the accused as stated supra. Challenging the same, the present appeal is filed.
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6. Learned Counsel for the appellant/accused would submit that the impugned judgment is contrary to law, weight of evidence and probabilities of the case; the trial Judge erred in placing reliance on the highly interested and discrepant testimony of P.Ws.1 and 2 and the Investigating Officer; the learned Judge ought to have seen that even P.W.1, who is the father of the victim/P.W.2, did not properly support the case of the prosecution and his evidence was based on hearsay, which is inadmissible in evidence; the Court below failed to take note of admission of P.W.1 that the victim girl is mentally retarded since her childhood and she is suffering partially unsound mind; the Court below ought to have considered the submission of the accused that the victim is tutored to support the case of the prosecution, as such she is able to give minute to minute narration of the alleged incident and that the Court below ought to have seen that a fair trial is conducted and the accused, who was implicated by P.W.1 and others, is acquitted from the false charge of rape; the Court below failed to appreciate the evidence of P.W.3, who is alleged to be an eyewitness, and who did not support the case of the prosecution and that the Court below ought to have weighed her evidence and come to conclusion that she was forced by her parents to implicate the appellant in the false case. It is also submitted that the Court below ought to have seen that all the prosecution witnesses have given inconsistent versions about the occurrence of 5 GSD, J Crla_1026_2019 the incident and ought to have given benefit of doubt to the accused. It is further submitted that the Court below ought to have seen that there is no consistency in the evidence of P.Ws.6 and 7, who are panch witnesses for Crime Detail Form panchanama and confession- cum-seizure panchanama and they did not support the case of the prosecution; the Court below ought to have seen that P.W.7 turned hostile to the case of the prosecution and held that the police took his signatures on some white papers. It is also submitted that the trial Court failed to appreciate the evidence of the doctor, which is inconsistent with the version of P.Ws.1 and 2; the Court below ought to have seen that during the evidence, P.W.2 did not depose that the accused penetrated his penis into her private parts, but the doctor i.e., P.W.8 has given inconsistent version saying that she found redness and congestion over labia minora and further, P.W.8 gave inconsistent version that she did not find any bleeding from the private part of the victim and, therefore, the Court below failed to appreciate the contradictions in the evidence of P.W.8 and failed to come to proper conclusion and as such in the absence of proof of penetration of penis into the private part of the victim, the conviction and sentence imposed against the accused is totally illegal and, therefore, the same is liable to be set aside.
7. Per contra, the learned Assistant Public Prosecutor would submit that as per Ex.P3-Bonafide Certificate, it has been clearly 6 GSD, J Crla_1026_2019 established that P.W.2 is less than 18 years of age as on the date of occurrence. He further submitted that the victim girl has clearly narrated the entire events happened and her evidence is supported by P.W.1, P.W.3 and P.W.8-Doctor. He also submits that a combined reading of the evidence of the victim girl as well as the evidence of the doctor amply proves that the victim was subjected to sexual assault by the accused. He further submits that P.W.9- Doctor, who issued Potency certificate, stated that the accused is potent. He further submits that the trial Court has rightly appreciated the prosecution evidence and the material available on record and, therefore, the conviction and sentence passed by the trial Court is justified and is not liable to be set aside.
8. In order to prove its case, the prosecution has examined as many as 12 witnesses. P.W.1 is the complainant and father of the victim girl. P.W.2 is the victim girl. P.W.3 is the eyewitness to the incident. P.W.4 is the photographer, who videographed the statement of P.W.2 recorded by P.W.10. P.W.5 is the Headmaster, who issued Ex.P3-bonafide certificate of the victim girl. P.W.6 is the panch witness for Ex.P4-Crime Details Form. P.W.7 is the panch witness for confessional-cum-seizure panchanama of the accused. P.W.8 is the doctor, who examined the victim girl and issued Exs.P6 to P8. P.W.9 is another doctor, who examined and issued Ex.P9-Age determination certificate and also Ex.P10-Potency Certificate of the 7 GSD, J Crla_1026_2019 accused. P.W.10 is the woman Sub Inspector of Police, who recorded the statement of P.W.2 (victim girl). P.Ws.11 and 12 are the Investigating Officers.
9. I have considered rival submissions of the learned Counsel for the appellant/accused, learned Assistant Public Prosecutor appearing for the respondent and gone through the entire material available on record.
10. To hold that the accused has committed the offence under Section 376 (2) (i) of the I.P.C, the prosecution has to establish that the accused has committed rape on the victim when she is under 16 years of age. As per definition of rape under Section 375 of the I.P.C, a man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person with or without her consent, when she is under eighteen years of age. For proving the offence under Section 5 (m) of the POCSO Act, the prosecution has to establish that the accused has committed penetrative sexual assault on the child below the age of twelve years. Thus, considering the ingredients of offences under Sections 376 (2)(i) of the I.P.C and under Section 5 (m) of the POCSO Act, the age of the victim at the material time of incident is material. 8
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11. To prove the age of the victim girl, the prosecution has relied upon the evidence of P.W.5-Head Master, MPPS, New Housing Board Colony, Adilabad, who issued Ex.P3-Bonafide certificate of the victim, and the evidence of P.W.9-Doctor, who issued Ex.P9-Age Determination Certificate. The evidence of P.W.5 is that the victim girl has studied in the School from 1st class to 4th class and he issued Ex.P3-Bonafide certificate of the victim girl basing on the school admission register on 24.08.2016 and as per the said record, the date of birth of the victim girl is 06.06.2007. The date of occurrence is 05.08.2016 and, therefore, at the time of occurrence, the age of the victim girl was only 9 years. However, as per Ex.P9-Age Determination Certificate issued by P.W.9, the age of the victim girl was between 12 to 13 years at the time of occurrence. Therefore, the prosecution has proved that at the time of incident, the age of the victim girl was below 12 years and she is a child within the meaning of Section 2 (1) (d) of the POCSO Act.
12. The case of the prosecution is that the accused has committed penetrative sexual assault on the minor girl on 05.08.2016 and as such he is liable for punishment for the offences punishable under Section 376 (2) (i) of I.P.C. and Section 5 (m) read with Section 6 of the POCSO Act. In order to prove its case, the prosecution has relied upon the evidence of P.Ws.1 to 3 and P.W.8-Doctor. The evidence of the victim girl (P.W.2) is that on the date of incident while she was 9 GSD, J Crla_1026_2019 playing with bicycle in front of the house of the accused, the accused took her inside the house promising to give a sticker and money and disrobed her, pressed her chest, removed her pant, fell on her, hugged her tightly and touched her private part with his penis. P.W.2 further stated that she informed the same to her father-P.W.1. Nothing was elicited from the cross-examination of P.W.2 to discredit her evidence. The evidence of P.W.2 is corroborated by the evidence of P.W.3, who is the eyewitness to the incident. In her evidence, P.W.3 deposed that on the date of incident while P.W.2 was playing in open ground in front of her house, the accused came there, took P.W.2 into the bathroom of his house. P.W.3 also testified that she informed the fact of accused taking the victim girl into his bath room to P.W.1, who is the father of the victim girl, and thereafter P.W.1 and his family members went into the house of the accused and took P.W.2 from the house of accused and that there was a quarrel took place in between family members of accused and P.W.2. Though P.W.3 turned hostile, her evidence is believable to the extent of the accused taking the victim girl to his bath room.
13. P.W.1, who is the father of the victim girl, deposed that in the month of August, 2016 at about 5.00 P.M., when he returned home, the victim girl (P.W.2) complained pain in the chest and on enquiry she disclosed that while she was playing with bicycle in front of the house of the accused, the accused took her inside the house 10 GSD, J Crla_1026_2019 promising to give a sticker and money, disrobed her, pressed her chest, removed her pant and fell on her and hugged her tightly. Nothing was elicited from the cross-examination of P.W.1 so as to discredit his evidence.
14. P.W.8-Doctor, who examined the victim girl, deposed that on 06.08.2016 she examined the victim girl (P.W.2) and on local examination there was redness and congestion over labia minora and as per vaginal examination, introitus admitting one finger and no bleeding. She further deposed that she preserved vaginal smear and pubic hair and sent the same for F.S.L. and after receipt of F.S.L. report, she issued final opinion stating that there was redness and congestion over labia minora, introitus admitting one finger, hymen not intact. Ex.P6 is the Clinical Examination Report, Ex.P7 is the F.S.L. Report and Ex.P8 is the Final Opinion. On the basis of evidence of P.W.2-victim, P.W.3-eyewitness, and P.W.8-Doctor and also Ex.P8-Final Opinion, the trial Court has rightly held that the accused has committed penetrative sexual assault on the victim girl, who is a child below 12 years of age.
15. From the oral and documentary evidence, the prosecution has proved that the accused had committed penetrative sexual assault on the victim girl, and therefore, the accused has committed the offences punishable under Section 376 (2) (i) of I.P.C. and Section 5
(m) read with Section 6 of the POCSO Act. Though there are some 11 GSD, J Crla_1026_2019 minor contradictions in the evidence of the prosecution witnesses, such contradictions are not material contradictions, which will go to the root of the case of the prosecution. This Court does not find any reason to discard the evidence of the victim girl (P.W.2). The trial Court has appreciated the entire oral and documentary evidence in a proper perspective and has rightly found the guilt of the accused for the offences as stated supra.
16. It is settled principle of law that no person can be punished twice for one offence. Looking into the gravity of nature of offence of sexual assault, particularly, rape on the victim below the age of 18 years, Section 42 and 42-A of POCSO Act, 2012 were incorporated to deal with such peculiar situation, which read as under:-
"Section 42: Alternative Punishment:- Where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or Section 509 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
Section 42A: Act not in derogation of any other law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."
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17. From the aforesaid Section, it is clear that if offence of sexual assault is punishable in relevant provision of POCSO Act and also in relevant provision of I.P.C., like 376 I.P.C., the trial Court is bound to punish the accused either in the relevant provision of POCSO Act, or under I.P.C. which is greater in degree. In view of Section 42 of the POCSO Act, no separate sentence was imposed by the trial Court for the offence punishable under Section 376 (2) (i) of I.P.C.
18. For the aforesaid reasons, this Court has no hesitation to hold that the judgment passed by the trial Court, is just and proper and, therefore, it does not require any interference by this Court.
19. Accordingly, this Criminal Appeal is dismissed confirming the conviction and sentence imposed against the appellant/accused by the learned Special Sessions Judge for Trial of Cases under Protection of Children from Sexual Offences Act-cum-I-Additional Sessions Judge, Adilabad, in Spl.S.C.No.104 of 2016, dated 28.10.2019.
20. Consequently, miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G.SRI DEVI 17.08.2021 Gsn/gkv 13 GSD, J Crla_1026_2019