Telangana High Court
Avidi Hara Gopal, E.G.Dist. vs P.P., Hyd on 24 November, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL APPEAL No.1130 OF 2015
JUDGMENT:
This Criminal Appeal is filed by the appellant-accused aggrieved by the judgment dated 12.11.2015 in Sessions Case PCS No.33 of 2015 on the file of the I-Additional Metropolitan Sessions Judge cum Special Judge for trial of cases under Protection of Children From Sexual Offences Act, 2012, Hyderabad, convicting him for the offence under Section 6 read with 5 (f) (m) of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act) and sentencing him to undergo rigorous imprisonment for a period of ten (10) years and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo simple imprisonment for a period of four (4) months.
2. The case of the prosecution in brief was that the complainant was a native of Nandyal, Kurnool District. In search of employment, he migrated to Hyderabad and had been working as a Make-up man in film industry. He used to stay along with his wife and daughter at Dr.GRR,J 2 Crl.A No.1130 of 2015 Krishna Nagar, Yousufguda. His wife left his company by leaving their only daughter with the complainant. As no person was available to look after the minor daughter and in view of her education, the complainant got her admitted in Good Samaritan High School of Nalanda Educational Institutions, Vengalraonagar, Hyderabad in the year 2013, while she was pursuing her 5th standard. Since then, the victim girl was staying in the girls' hostel belonging to the said institute. The victim was pursuing her 6th standard at the time of the incident. The accused person, who was a native of East Godvari District, in search of employment, migrated to Hyderabad along with his family consisting of his wife and two children and worked in various private firms. In the year 2014, he joined the Nalanda Educational Institution as a peon and at the time of the offence, he was working as a Receptionist in the said institute on a monthly salary of Rs.10,000/-. He used to look after the administrative work as well as monitoring the movements of the students of the School as well as college in the ground floor from 08.00 AM to 9.00 PM every day. The victim, who was staying in the girls' hostel also used to attend the tuitions and study hours along with the other students. After attending the same, she used to leave for her hostel. The accused would look Dr.GRR,J 3 Crl.A No.1130 of 2015 after them till they reach their hostel every day. The accused was aware of the family background of the victim and after noticing that no one was visiting the institute to meet her, decided to sexually exploit her since there was no responsible person visiting her frequently and as a minor girl, she might not be able to disclose such acts to others under fear, and he was waiting for a chance to fulfill his lust.
3. While so, on 20.12.14, at about 08.45 PM while the accused was at the reception counter, noticed the victim, coming alone from the 1st floor after attending her study hours and was going to her hostel. Taking the situation as an opportunity, the accused tried to take her into the unlocked room of the college principal situated near the reception point, by informing the victim that her aunt would come to meet her. But, the victim refused to go into the room and started shouting. Then, the accused forcibly took her into the room of administrative officer situated in the northwest corner of principal's room by closing her mouth with a handkerchief, and he kissed on her cheeks and lips and removed the pant and underwear of the victim and licked her genital parts with his tongue. He also removed his pant and Dr.GRR,J 4 Crl.A No.1130 of 2015 was trying to exploit her sexually by closing her mouth with hands. Then the victim shouted loudly. Due to fear, the accused left the victim by warning her not to disclose the matter to anybody. The victim ran out of the place and the accused also came out from the said room. The watchman, who resumed his duty, witnessed the same. The accused also left the work place. When the warden at the girls' hostel found the victim girl without pant, enquired with her. The victim informed the warden that the accused misbehaved with her. Then the warden informed to the Manager of the Hostels of Nalanda High School, Venngalarao Nagar, Hyderabad, who used to monitor the issues of the hostels. As it was late in the night, he promised the warden that he would inform the issue to Vice Chairman of the Institutions on the next day morning since the Vice Chairman was attending the treatment of his father, who was suffering from cardiac problem. On the next day morning the Manager informed the same to the Vice Chairman. Meanwhile the maternal aunt of the victim visited the institute on 21.12.2014 at 5.00 PM on the request of the father of the victim (complainant) to bring his daughter from the hostel and the victim girl was sent along with her. The father of the victim picked up the victim from her house on the same day. On Dr.GRR,J 5 Crl.A No.1130 of 2015 22.12.14 in the morning hours, when the complainant intended to take his daughter to go to temple, as she was in dull mood, pursued the reason for her dullness. The victim disclosed the heinous activity committed by the accused on 20.12.2014 at 8.45 PM in the School. On coming to know about the same, the complainant along with the victim and the maternal aunt of the victim met the Vice Chairman of the Institute and informed him. The Vice Chairman summoned the accused. The accused also admitted about his misdeed. But, while the Vice Chairman was enquiring further with the victim, the accused escaped from the said premises. Then the complainant along with the victim and her maternal aunt came to the police station on 22.12.2014 at 12.10 PM and lodged the report.
4. Basing on the said report, the Inspector of Police of Sanjeev Reddy Nagar Police Station, Hyderabad registered a case in Crime No.1181 of 2014 for the offence under Section 376 (2) (f) & (i) of IPC Crl.Law (Amendment) Act, 2013 and Section 5 ((f) (m) read with 6 of the POCSO Act and issued FIR. The Inspector recorded the statements of the complainant and the maternal aunt of the victim. He got recorded the statement of the victim girl by the woman police Dr.GRR,J 6 Crl.A No.1130 of 2015 constable and also got it videographed. He visited the scene of offence and as pointed out by the victim found that the place of offence was at administrative officer's chamber in the principle's room cum college fee collection counter in the ground floor of the school building. He secured the panch witnesses and recorded the scene of observation panchanama. He also visited the girls' hostel situated in the first floor of the building situated behind the school and collected the clothes of the victim girl which she wore at the time of offence. He sent the victim girl to the Medical Officer along with escort of woman police constable to Gandhi Hospital, Secunderabad. He recorded the statements of the witnesses examined as LWs.3 to 7. The Medical Officer collected the smears for sending them to Forensic Science Laboratory through the Investigating Officer. The Investigating Officer also got recorded the statement of the victim under Section 164 Cr.P.C. by the II Additional Metropolitan Magistrate, Hyderabad on 23.12.2014. He apprehended the accused at JNTU cross roads, Kukatpally on 22.12.2014 at 7.00 PM. On interrogation, the accused admitted his guilt. The Investigating Officer effected the arrest of the accused and sent him for potency test. After collecting the medical certificates of the victim and the accused, the Dr.GRR,J 7 Crl.A No.1130 of 2015 Investigating Officer filed charge sheet against the accused for the offences under Section 376 (2) (f) & (i) of IPC Crl.Law (Amendment) Act, 2013 and Section 5 ((f) (m) read with 6 of the POCSO Act.
5. The case was taken cognizance by the I-Additional Metropolitan Sessions Judge, Hyderabad. As the accused pleaded not guilty for the charges under Section 376 (2) (f) & (i) of IPC Crl.Law (Amendment) Act, 2013 and Section 5 ((f) (m) read with 6 of the POCSO Act, trial was conducted against him. During the course of trial, the prosecution got examined PWs.1 to 11 and marked Exs.P1 to P6 and MOs.1 to 3. No defence evidence was adduced by the accused.
6. On considering the oral and documentary evidence and the material objects marked, the Metropolitan Sessions Judge FAC of I-Additional Metropolitan Sessions Judge, Hyderabad found the accused not guilty for the offence under Section 376 (2) (f) and (i) of IPC, but found him guilty for the offence under Section 6 read with Section 5 (f) (m) of POCSO Act and sentenced him to undergo rigorous imprisonment for 10 years and fine of Rs.5,000/-, in default Dr.GRR,J 8 Crl.A No.1130 of 2015 of payment of fine, to undergo simple imprisonment for a period of four (4) months for the offence under Section 6 of the POCSO Act.
7. Aggrieved by the said conviction and sentence, the accused preferred this appeal contending that the trial court erred in coming to the conclusion that the appellant-accused committed the offence under Section 6 read with Section 5 (f) (m) of POCSO Act as there were contradictions in the evidence of PWs.1 to 9. The trial court erred in not considering the discrepancies in their evidence. The judgment of the trial court was based on conjunctures and surmises and the same was liable to be set aside and prayed to allow the appeal.
8. Heard learned counsel for the appellant-accused and the learned Assistant Public Prosecutor for the respondent-State.
9. The learned counsel for the appellant-accused contended that no document was filed with regard to proof of the age of the victim, except assertions no date of birth certificate was filed to reckon the age of the victim. As the POCSO Act being a special enactment, the conviction without filing any proof was not maintainable. The hostel warden to whom the victim was alleged to have first revealed the Dr.GRR,J 9 Crl.A No.1130 of 2015 incident, cited as LW.4, was not examined. Likewise, the Magistrate, who recorded the 164 Cr.P.C. Statement of the victim, was also not examined. The 164 Cr.P.C. statement of the victim was not marked and a copy of the same was not even supplied to the accused. An adverse inference would need to be taken for suppression of 164 Cr.P.C. statement by the prosecution and relied upon the judgment of the High Court of Telangana and A.P. in Gogula Ramanaiah v. State of Andhra Pradesh1. He further submitted that the appellant was aged 62 years by the date of incident in the year 2014, he was now aged about 70 years suffering with old age ailments, he was in custody since the date of conviction on 12.11.2015 and prayed to set aside the judgment of the trial court in SC PCS No.33 of 2015 dated 12.11.2015.
10. The learned Assistant Public Prosecutor, on the other hand, contended that the evidence of the witnesses was cogent and trustworthy. The evidence of the victim alone was sufficient to prove the guilt of the accused, but in the present case, the same was corroborated with the evidence of the other witnesses also. Minor inconsistencies could not be a ground to disbelieve the evidence of the 1 2018 (2) ALD (Crl.)135 Dr.GRR,J 10 Crl.A No.1130 of 2015 witnesses. Though no document with regard to the date of birth of the victim was filed, the evidence of PWs.3 to 8 would show that the victim was studying 6th standard in their school. The accused could not contend that the copy of the 164 Cr.P.C. statement was not supplied to him, as all the documents filed along with the charge sheet were supplied to the accused under Section 207 Cr.P.C. and the accused had not raised any such issue before the trial court. Even without relying upon the 164 Cr.P.C. statement of the victim, the prosecution was able to prove the guilt of the accused and prayed to uphold the conviction recorded by the trial court against the accused.
11. Perused the record. As the accused was charged for the offences under Section 376 (2) (f) and (i) of IPC and Section 5 (f) and (m) of POCSO Act, it is considered necessary to extract the said provisions.
12. Section 376 (2) (f) prescribes punishment for committing rape by a person being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman. Sub Section (i) prescribes punishment for a person who commits rape on a woman when she is under sixteen years of age. The said provision was amended by Act 22 of 2018 with effect from Dr.GRR,J 11 Crl.A No.1130 of 2015 21.04.2018. As the offence was pertaining to the year 2014, the said provision as it is then was alone applicable. But, however, as the accused was acquitted by the trial court for the offence under Section 376 (2) (f) and (i) of IPC and no appeal was preferred by the State, against the said acquittal, the same is not under challenge in this appeal. This appeal is preferred by the accused aggrieved by the conviction and sentence inflicted by the trial court against him for the offence under Section 5 (f) and (m) of POCSO Act. Section 5 of the POCSO Act is pertaining to aggravated penetrative sexual assault on a child. Section 5 (f) reads as under:
"5. Aggravated penetrative sexual assault:
......
(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or .....
(m) whoever commits penetrative sexual assault on a child below twelve years."
13. Punishment for aggravated penetrative sexual assault was provided under Section 6 of the POCSO Act, 2012. It reads as follows:
"6. Punishment for aggravated penetrative sexual assault.--
Dr.GRR,J 12 Crl.A No.1130 of 2015 Whoever, commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine."
The above provision was at the time of offence. Subsequently, it was substituted by Act 25 of 2019 increasing the punishment to 20 years with effect from 16.08.2019. But, we are concerned with the provision as it was existing at the time of the offence.
14. Penetrative sexual assault is defined under Section 3 of the POCSO Act as:
"3. Penetrative sexual assault: A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
Dr.GRR,J 13 Crl.A No.1130 of 2015
15. 'Child' is defined under Section 2 (d) of the POCSO Act. It is as under:
"2. Definitions:
(d) "child" means any person below the age of eighteen years."
16. In the light of these provisions and definitions provided under the Act, the evidence of the witnesses has to be looked into. The evidence of the victim is material for these offences. The victim was examined as PW.2. As she was aged 12 years by the date of recording her evidence, the court after satisfying itself after recording the preliminary questions that she was capable to give evidence, proceeded to record her evidence. The victim stated that at the time of the case, she was studying in Nalanda High School, S R Nagar in VI Standard. She stayed in the hostel. The school and the hostel were located in the same building. She knew the accused. The accused worked in the reception of the school. On 20.12.2014 at 8.45 PM, the accused told her that her aunt was coming and asked her to stay there and took her into the office room, which was by the side of the reception. But, she raised cries. He closed her mouth with his kerchief and dragged her inside the room. He kissed on her both cheeks. When she was shouting, he kissed her on her lips. He took Dr.GRR,J 14 Crl.A No.1130 of 2015 off her leg-in and her underwear and he also removed his pant and licked on her private parts. Then she ran out of the room crying. The watchman observed the same and smiled. She went into the hostel and when her warden Krishnapriya (LW.4) enquired with her as to what happened, as she did not have her leg-in on her body, as she ran out from the room as she was, she told everything to LW.4. Then the warden informed the matter to LW.5 Venkat Rao. LW.5 came and asked her as to what happened and she informed him also the same. On the next day morning, LW.5 took her to their Chairman Sir. She informed the matter to him also. The Chairman asked her not to reveal the matter to her parents and expressed that the accused had been working with him since 20 years. Then she returned to the hostel. Her aunt (LW.8) came in the evening and took her to her house. On the same day, her father came and took her to home. On the next day, her father asked her to get ready to go to temple, but she was dull and did not get ready. Then her father enquired her as to what happened and she informed the matter to him. She also went to the police station along with her father at the time of giving report and the police recorded her statement. She stated that her statement was also recorded by the Magistrate and she was referred to the Government Dr.GRR,J 15 Crl.A No.1130 of 2015 Hospital. Her clothes were also seized by the police. She identified MO1 as her leg-in, MO2 was the T-shirt and MO3 was the underwear.
17. In her cross-examination, she stated that only three students stay in the hostel including her. The study hours were supervised by LW.6 Haritha teacher. The study hours took place in another building which was adjacent to their hostel building. They themselves would go to the study hours and were not accompanied by any Aaya or anyone. They could reach the study hours from the place of incident within one minute. There were other boys along with her in the study hours. A person present in the study hours could not hear a person from the place of offence room. She also stated that she was studying in the said school for the past two years prior to the incident. She was joined in the school by her parents. Her mother left her father while she was in her sixth standard. She did not know the reasons for her parents living separately.
18. The statement of the victim that she informed the incident to her warden LW.4 and LW.4 informed the matter to LW.5 and they took her to the Chairman on the next day and the Chairman asked her not to inform the matter to her parents and that the accused was working Dr.GRR,J 16 Crl.A No.1130 of 2015 there for the past 20 years and the watchman smiled and that she went along with her father to the police station, was elicited as omissions, which were not stated before the police.
19. The father of the victim girl - complainant was examined as PW.1. He stated that the victim was aged 11years by the date of offence. She was studying in Nalanda High School, Vengalrao Nagar, Hyderabad in VI standard by staying in the hostel. He knew the accused. He was working as Receptionist in the said hostel. He now and then would go to the hostel to see his daughter. On 21.12.2014, the sister-in-law of his wife went to bring the victim girl as she was matured two days prior to that day and they wanted to perform some pooja. He stated that his wife was not staying with him due to some disputes. As such, LW.8 brought the victim to her house. On the same night, he went to the house of LW.8 and brought the victim to his house. On the next day when he wanted to take her to a temple for performing pooja, she was dull and on his enquiry she informed about the incident. Then he went to the police station and gave a report. In his cross-examination, he stated that he and his wife were living separately one year after the date of joining of the victim in the hostel.
Dr.GRR,J 17 Crl.A No.1130 of 2015
20. The watchman of the school was examined as PW.3. He stated that he knew the victim and the accused. The accused was working as receptionist in Nalanda High School. On 20.12.2014 at about 9.00 PM, he came for duty and met the Manager. Later he saw the victim coming out of the room which was near the reception and following her the accused also came out. In his cross-examination, he stated that no one was present at the reception at that time and the victim wore frock which ran up to her knees.
21. The Manager of Nalanda High School was examined as PW.4. He stated that on 20.12.2014, which was a Saturday at about 10.00 PM, the hostel warden Krishna Priya - LW.4 telephoned to him and informed that the accused misbehaved with PW.2. On the next day he informed their Vice chairman Srinivasa Raju as their Chairman was not well. As it was Sunday and the staff would not come to the School, hence, the Vice Chairman told them that they would talk about the issue on Monday. The Aunt of the victim came on Sunday and took the victim stating that she had to take her to a temple. In his cross-examination, he stated that his wife also was working in the same School and was looking after the study hours. The study place Dr.GRR,J 18 Crl.A No.1130 of 2015 was located in the first floor. He did not inform the matter to his wife as by that time, she came from study hours and it was late. He would look after the boys. He stated that there were three hostellers in the Primary Section. On that day, only PW.2 attended the study hours as the other two took permission. He stated that he informed the Vice Chairman about 10.30 AM on the next day and that he did not inform the matter to the parents of the victim.
22. The wife of PW.4, who was incharge for the study hours of the students, was examined as PW.5. She stated that she would look after the study hours in the morning from 6.30 AM to 7.30 AM and in the evening from 6.00 PM to 9.00 PM. On 20.12.2014, PW.2 (victim) as usual attended the study hours in the evening and left at 8.45 PM as it was Saturday. She stated that the study hours were in the first floor of the building. PW.4 (her husband) informed her on night about LW.4 Krishna Priya informing him about the accused misbehaving with PW.2. She stated that altogether there were four hostellers. On that day only PW.2 came to the study hours and the others took permission. In her cross-examination she stated that she came to know about the incident on the same night. She did not go and make any Dr.GRR,J 19 Crl.A No.1130 of 2015 enquiry with regard to the incident as it was already late. The police examined her on Monday at the School.
23. The Vice Chairman of the Nalanda School, Vengalrao Nagar was examined as PW.6. He stated that PW.2 was studying 5th Standard at the time of the case. The accused was looking after the reception. On 21.12.2014 at about 10.00 AM, PW.4 who was the warden of the hostel informed him that the accused misbehaved with PW.2. Then immediately, he called the parents of PW.2. When he wanted to talk to the accused, he was not found. He advised the parents of PW.2 to report the matter to police immediately. In his cross examination, he stated that he did not talk to PW.2 as she was taken by her aunt for the purpose of taking her to temple on the previous day i.e. on 21.12.2014 Sunday.
24. The aunt of the victim was examined as PW.7. She stated that on 21.12.2014 which was a Sunday, as her brother, who was the father of PW.2, did not have time asked her to go to the hostel to bring PW.2 for the purpose of performing pooja as PW.2 got matured on 01.12.2014. As such, she went to the hostel and brought PW.2 to her house and PW.1 came to her house and took the victim on the same Dr.GRR,J 20 Crl.A No.1130 of 2015 night. On the next day PW.1 told her that PW.2 was not willing to go back to School and informed her that when PW.2 was returning from study hours on 20.12.2014, the receptionist of the school took her inside and misbehaved with her. Then, she and PW.1 went to the school and from there they went to the police station and gave report. In her cross-examination, her evidence as to PW.1 telling her that PW.2 was not willing to go to school and that she and PW.1 went to school, was elicited as an omission. She stated that PW.2 did not disclose anything to her.
25. Thus, these witnesses were the main witnesses examined by the prosecution to speak about the incident. PW.2 was the victim herself, who stated clearly about the incident. There was no dispute with regard to identity of the accused. All the witnesses stated that the accused was working as a receptionist in the said school. The cross- examination would not disclose that any questions were raised with regard to the age of the victim. The victim stated that she was studying VI Class at the time of the incident. PW.3 stated that there were only three hostellers in the primary section. PW.4 stated that there were only four hostellers. Except minor discrepancies in the Dr.GRR,J 21 Crl.A No.1130 of 2015 evidence of these witnesses, their evidence was consistent with regard to the actual incident. PW.2-victim girl clearly stated the act committed by the accused upon her. PW.3 stated that he had seen the victim coming out of the room near the reception and following her, the accused also came out and there were no one present at the reception at that time. It corroborated the evidence of the victim who stated that when she came out of the room, watchman observed and smiled. Though the evidence of the victim with regard to the watchman smiling was elicited as an omission, the same would not anyway effect the prosecution case. The evidence of PW.4 also would disclose that the hostel warden immediately informed him about the incident on the same night on 20.12.2014 at 10.00 PM itself, which corroborated the evidence of the victim that she informed the warden about the incident and the warden inturn informed the Manager and the Manager on the next day informed to the Vice Chairman. Though the same was elicited as an omission in the evidence of PW.2, the evidence of PWs.4, 5 and 6 corroborated that they were informed by the other witnesses i.e. PW.4 by LW.4, PW.5 by PW.4 and PW.6 by PW.4. Though there were some discrepancies in the evidence of the witnesses, while PW.2 stated that she was also taken to the Chairman Dr.GRR,J 22 Crl.A No.1130 of 2015 on the next day and the Chairman asked her not to inform the matter to her parents and PW.6 stated that he did not talk to PW.2 and that he called the parents of PW.2 and advised the parents to report the matter to the police and about PW.2 stating that the Chairman asked her not to inform the matter to her parents, as the accused was working there since 20 years. These discrepancies would not go to the root of the prosecution case to discredit the evidence of the victim. There were no serious contradictions and omissions which would materially affect the case of the prosecution. Some marginal variations in the statements of the witnesses would not adversely affect the case of the prosecution. Every omission cannot take the place of a contradiction in law and cannot be a foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies which are marginal and trivial in nature, which do not affect the core of the prosecution case cannot be taken as a ground to reject the prosecution case in its entirety.
26. The evidence of PW.8 would disclose that he acted as a witness for the scene of offence panchanama and that police prepared panchanama and rough sketch in his presence and that he was a driver Dr.GRR,J 23 Crl.A No.1130 of 2015 of Nalanda School, Vengalrao Nagar. The doctor was examined as PW.9 and she stated that she did not find any external injuries on the body of the victim and on external genitalia. She stated that the hymen was found intact. She collected smears from the introitus and sent it to the FSL. After receiving FSL report, she issued certificate stating that no semen and spermatozoa was detected, but however, sexual assault could not be ruled out.
27. Considering the evidence of the doctor, the trial court acquitted the accused for the offence under Section 376 (2) f) and (i) of IPC. But, however, as the definition of penetrative sexual assault includes applying mouth of the accused to the vagina of the child and her evidence would disclose that the accused licked her private parts, the same can be considered as a penetrative sexual assault as per the definition under Section 3 of the POCSO Act. When the penetrative sexual assault was committed against a child, who is less than 12 years of age, the same can be considered as aggravated penetrative sexual assault as per the definition under Section 5 (m) of the POCSO Act and when the same was committed by a person, who was the staff of an Educational Institution on a child in that institution, the same Dr.GRR,J 24 Crl.A No.1130 of 2015 was covered under Section 5 (f) of the POCSO Act. Hence, the trial court rightly convicted the accused for the offence under Section 6 of the POCSO Act which prescribes punishment for aggravated penetrative sexual assault defined under Section 5 of the POCSO Act.
28. The contention of the learned counsel for the appellant-accused with regard to not providing the 164 Cr.P.C. statement to the accused and the same caused prejudice to the accused cannot be considered as material, as the same was not raised by the accused before the trial court at any time during the trial. Even the prosecution had not relied upon the 164 Cr.P.C. statement of the victim which was recorded by the Magistrate during the investigation in coming to the conclusion of the guilt of the accused. As the prosecution had not relied upon the said statement, non-filing the same would not cause any prejudice to the accused. The judgment relied by the learned counsel for the appellant-accused in Gogula Ramanaiah's case (supra) is a case which was not under POCSO Act, but was under Section 302 IPC. The POSCO Act is a special legislation to prevent sexual abuse against the children and aimed at protecting the children's interest. A reverse burden is placed upon the accused under Sections 29 and 30 of Dr.GRR,J 25 Crl.A No.1130 of 2015 the POCSO Act. These cases cannot be equated as that of the offences under IPC cases, where the burden of proof is on the prosecution beyond reasonable doubt. Hence, the above judgment is distinguishable on the facts of the case. Non-examination of LW.4 or not filing of any document in proof of the date of birth of PW.2 are not considered as material lapses effecting the prosecution case, in view of the cogent, reliable and trustworthy evidence of the witnesses as extracted above. Hence, this Court does not find any reason to set aside the conviction and sentence recorded by the trial court.
29. In the result, the Criminal Appeal is dismissed confirming the judgment dated 12.11.2015 passed in Sessions Case PCS No.33 of 2015 by the I-Additional Metropolitan Sessions Judge cum Special Judge for trial of cases under Protection of Children from Sexual Offences Act, 2012, Hyderabad.
Pending miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J November 24, 2022 KTL