Andhra Pradesh High Court - Amravati
Vadde Masthan, Ananthapur Dt., vs The State Of Ap., Rep Pp., on 30 November, 2022
Author: C.Praveen Kumar
Bench: C. Praveen Kumar
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
Criminal Appeal No. 330 of 2016
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) Heard Sri. G. Vijaya Saradhi, learned Legal-Aid Counsel appearing for the Appellant/Accused and Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor, appearing for the State.
2) The present Appeal came to be filed against the Judgment, dated 21.08.2015, in Sessions Case No.373 of 2014 passed by the Ist Additional Sessions Judge, Anantapuramu, wherein, the Accused was found guilty of the offence punishable under Section 376(2) Indian Penal Code ['I.P.C.'] and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 ['POCSO Act'] and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- for the offence punishable under Section 376(2) I.P.C. No separate sentence is awarded under POCSO. Further, the Government of Andhra Pradesh was directed to 2 pay compensation to the Victim-Girl under the A.P. Victim Compensation Scheme, 2015, to an extent of Rs.3,50,000/-.
3) The facts, in issue, are as under: (i) PW1 is the Victim-Girl. PW2 and PW3 were examined to
speak to the circumstances of the case, while PW4 is the wife of the Accused.
(ii) The marriage between the Accused and PW4 took place in the year 1999 and they were blessed with one Son and Daughter. It is said that, as her husband [Accused] used to beat her by taking liquor, she was forced to stay with her parents.
(iii) PW1, who is a resident of Kadapa, was prosecuting her studies in R.S.T.C. at Buddayapalli in Kadapa. She was in the School Hostel while prosecuting her studies. As the food in R.S.T.C. was not good, she escaped from the School Hostel without informing the authorities, went to Kadapa Railway Station and boarded a train to Guntakal. While she was travelling in the train, she met the Accused. The said person [Accused] enquired about her elders and also about her parents. She seems to 3 have disclosed to him that she lost her mother at the early stage and whereabouts of her father are not known. The said person, who is now arrayed as 'Accused', is said to have informed PW1 that he will look-after her well and took her to his house. The house of the Accused was dark and his mother, who is old and bedridden, was sitting outside the hut. It is said that, after going to the house of Accused, he gave food and after taking food, PW1 slept in the house.
(iv) While PW1 was sleeping in the hut, the Accused woke her up with a tin of kerosene in his hand and asked her to remove her clothes. When she resisted the same, her threatened to pour kerosene and lit fire. Out of fear, PW1 removed the clothes and, thereafter, the Accused is said to have committed rape on her. Her version also discloses that Accused repeatedly committed the same act once in an hour. When he asked her to wear clothes, he noticed blood flowing from her vagina and, as such, he cleaned blood with the cotton slab and then hid the said cloth. It is said that, even thereafter, the Accused behaved in the same manner. Her evidence also 4 discloses that the mother of the Accused sometimes talks in favour of PW1 and sometimes in favour of the Accused.
(v) On 20.09.2013, the Accused brought PW1 to Railway Station, Guntakal, in the auto of PW5, where he started kissing her. This act of Accused was noticed by PW2 and others and questioned him as to why he is forcibly kissing PW1. When PW1 was questioned as to why she is with Accused, PW1 is said to have explained the facts to them. PW2 and one Bojjanna took PW1 and the Accused to Police Station, Guntakal Rural, where, she gave a Report [Ex.P1].
(vi) PW11, who was the Head Constable, received the report [Ex.P1] from PW1 and basing on the said report, registered a case in Crime No. 146 of 2013 for the offence punishable under Section 376(2)(i)(n) of I.P.C. against the Accused. Ex.P12 is the First Information Report. Further investigation, in this case, was taken up by PW12.
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(vii) According to PW12 - Inspector of Police, on 21.09.2013 at 12.00 Noon, while he was in his Office, PW1 and Accused were brought in by the Head Constable. He examined PW1 and recorded her statement. Then he directed Woman S.I., by name, Sunitha, to take PW1 to a separate room, change her wearing apparel and hand over the same to him. Thereafter, he secured the presence of PW6 and another and in their presence, he inspected the clothes of PW1 and seized them under Ex.P2. Thereafter, he sent PW1 to Government Hospital, Guntakal, for medical examination.
(viii) PW8 - the Assistant Professor, Government Medical College, Anantapur, examined PW1 and opined that, the Victim - Girl was aged about 13 years and after examining her found that there was recent intercourse. Basing on the R.F.S.L. Report, PW8 gave opinion under Ex.P7 [final opinion].
ii) On 22.09.2013, PW12 sent the Accused to Government Hospital, Guntakal, for medical examination and after obtaining the fitness certificate, remanded the Accused. 6 After examining all the witnesses and after obtaining all the certificates including the potency certificate, a charge-sheet was filed before the Designated Court.
4) On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Basing on the material available on record, charges as referred to above came to be framed, read over and explained to the Accused, to which, the Accused pleaded not guilty and claimed to be tried.
5) In support of its case, the prosecution examined PW1 to PW12 and got marked Ex.P1 to Ex.P14, beside marking M.Os.1 to M.O.5. After completion of prosecution evidence, the Accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, however, no defence evidence was adduced in support of his plea.
6) Relying upon the evidence of PW1 to PW5, coupled with the medical evidence, the learned Sessions Judge convicted the Accused for the offence punishable under Section 376(2) 7 I.P.C. and Section 5(l) read with Section 6 of POCSO Act. Against this conviction, the present Appeal is filed.
7) Sri. G. Vijaya Saradhi, learned Legal-Aid Counsel appearing for the Appellant/Accused, mainly submits that, the evidence of PW1 cannot be believed as she is not coming out with true version of the case. In other words, his arguments appears to be that when she was detained in the house for two days, no efforts was made to abscond or to raise cries attracting the attention of the neighbours. In view of the conduct of PW1, he would submit that a false case has been foisted against the Accused.
8) Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, would submit that PW1 was confined in the hut and there was no occasion for her to move out of the hut. He further submits that, there is no reason for PW1 to speak false against the Accused. Apart from that, the evidence of PW3, PW4 and PW5 also supports the version of PW1 and establish the guilt of the Accused beyond reasonable doubt. In view of the above, he would 8 submit that the conviction and sentence imposed requires no interference.
9) The point that arises for consideration is, whether the prosecution was able to prove the guilt of the Accused beyond reasonable doubt?
10) As seen from the record, PW1 was aged about 13 years at the time of incident. Before examining her in the Court, the learned Sessions Judge put some preliminary questions and after being satisfied, recorded her evidence in which she categorically stated that she escaped from the School Hostel, went to Railway Station, Kadapa, and boarded a train to go to Guntakal. In the train, she came across Accused, who enquired and found out of her details and, thereafter, took her to his house for providing food etc. Believing him, PW1 went to the house of the Accused. In the said house, the Accused was living with his mother, who was bedridden and not in a position to stand or walk. In the said hut, the Accused threatened PW1 to kill her by pouring kerosene if she does not oblige his request and, thereafter, committed rape on her continuously for two days. On third day, the Accused brought her to Guntakal Railway Station, where he was 9 forcibly kissing PW1. The people standing there objected for the same and questioned the Accused and PW1 and then brought both of them to the Police Station and PW1 set the law into motion.
11) PW1 was cross-examined at length, but nothing useful came to be elicited to discard her testimony. All the suggestions given were denied by her.
12) PW2 is a Mason attending masonary works at Bangalore. According to him, he used to go to Bangalore by train and he remember PW1 a small girl. On one day morning he was going to Bangalore from Thimmacherla Railway Station. He happened to see PW1 sitting in Thimmacherla Railway Station on a bench along with the Accused. PW2 noticed the Accused kissing PW1 in the Railway Station. One M. Bojjanna was also travelling along with PW2 to Bangalore. Then, himself and Bojjanna said to have brought PW1 from the clutches of the Accused, enquired her whereabouts and about her identity. She revealed her name and her native place and also disclosed her family 10 background. Immediately, they took PW1 and the Accused to Guntakal Police Station, where PW1 lodged Ex.P1 report.
13) PW2 was also cross-examined but nothing useful came to be elicited to discredit his testimony. In-fact, it has been elicited that on that day he boarded the train in Thimmacherla Railway Station. To a suggestion as to registration of cases against PW2 was denied by him. It was further elicited from him that when they were enquiring PW1 separately, the Accused did not try to ran away from that place. To a suggestion that the Accused is not connected with the case was denied by him.
14) PW3 lives by running a Auto. His house is situated at a distance of fifty feet from the house of the Accused. According to him, the Accused is married and having a son and daughter. Along with the Accused, his mother lives with him who is not in a position to move. He further states that in view of the family disputes, the wife and children of the Accused left him and are living separately. When enquired about PW1, the Accused told PW3 that PW1 is his elder brother's daughter. On one day he found PW1 weeping. Four 11 of five neighbours of the Accused enquired the Accused who PW1 is, for which the Accused replied that she is his elder brother's daughter, who was brought to his house to help his mother.
15) PW5 is also an Auto driver, who ekes out his livelihood by running a Auto. According to him on 19.09.2013 the Accused travelled in his auto along with a girl aged about ten to twelve years from Thimmacherla Railway Station to his house and two days thereafter he happened to see the said girl and the Accused at Thimmacherla Railway Station, amongst a crowd. He went there and found the Accused kissing PW1. PW3 and one Bojjanna took the Accused and PW1 to the Police Station. This witness was also cross- examined, but, we do not find anything to discredit the said version.
16) From the evidence of these witnesses, it can be said that there is ample corroboration to the evidence of PW1 and her version remained unimpeached. It is clear that on 19.09.2013 the Accused brought PW1 to his house and on 21st he was found in the Railway Station along with a girl [PW1]. In the 12 Railway Station, while sitting on the bench, he was found kissing PW1, which lead to PW2 and others questioning the girl and taking her along with them to Police Station. The fact that PW1 was there with the Accused is not only established through the evidence of PW1, but also through the evidence of PW3 and PW4. Apart from that, the evidence of PW1 also establish the Accused not only bringing PW1 to his house on a false promise, but also committing sexual assault repeatedly on 19th and 20th. The said evidence of PW1 gets corroboration from the medical evidence, which fact is not seriously disputed.
17) Having regard to the above, the prosecution version that the Accused sexually assaulted PW1, who is aged about 13 years at the time of offence, stands established.
18) At this stage, Sri. G. Vijaya Saradhi, learned Counsel appearing for the Appellant/Accused, would submit that the mother of the Accused is bedridden, lost her two lower limbs and, as such, pleads for mercy. In other words, he requests the Court to reduce the sentence from life imprisonment [for the entire life] to ten years.
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19) The learned Additional Public Prosecutor would submit that, having regard to the manner in which the incident took place, which gets support not only from the evidence of PW2, but also from PW3, PW4 and PW5, it is a fit case where the sentence awarded warrants no interference. He further submits that the compensation awarded under the Victim Compensation Scheme must have been paid to the Victim [PW1] by now.
20) It is to be noted here and as held by us earlier, the prosecution was successful in proving the guilt of the Accused for the offence punishable under Section 376(2)(i)(n) and also under Section 5(l) read with Section 6 of POCSO Act. The trial Court took the aid of Section 42 of the POCSO Act, while awarding punishment. Since, the un-amended Section 6 of POCSO Act, postulates rigorous imprisonment which shall not be less than ten years but which may extend to life imprisonment and also fine, and as the punishment under Section 376(2)(n) I.P.C. is rigorous imprisonment for a term which shall not be less than ten years but which may extend to life imprisonment, which shall mean imprisonment for the remainder of that person's natural life and also fine, the trial 14 court awarded sentence under Section 376(2)(n) of I.P.C. being greater in degree and sentenced him to suffer imprisonment for life for the rest of his life.
21) Taking into consideration the gravity of the offence and having regard to the fact that the compensation must have been paid, by now, in terms of G.O.Ms.No.43 Home, dated 15.04.2015, the conviction awarded by the trial Court warrants no interference and the Accused is sentenced to suffer imprisonment for life for the offence punishable under Section 376(2)(i)(n) of I.P.C. No separate sentence under Section 6 of POCSO Act.
22) Accordingly, the Criminal Appeal is allowed in part. No order as to costs.
23) Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI Date: 30.11.2022 - S.M./.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI Criminal Appeal No. 330 of 2016 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 30.11.2022 S.M.