Andhra Pradesh High Court - Amravati
P.Khaja Khan vs State Of Ap on 3 April, 2025
Author: K.Suresh Reddy
Bench: K Suresh Reddy
APHC010058852019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3528]
(Special Original Jurisdiction)
THURSDAY, THE THIRD DAY OF APRIL
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE K SURESH REDDY
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL APPEAL NO: 172/2019
Between:
P.khaja Khan ...APELLANT
AND
State of Andhra Pradesh, ...RESPONDENT
...RESPO
Rep. by its Public Prosecutor
Counsel for the Appellant:
ellant:
1. G VIJAYA SARADHI
Counsel for the Respondent:
dent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
JUDGMENT:(Per Hon'ble Sri Justice K.Suresh Reddy) Sole accused in POCSO S.C.No.21 S.C.N of 2016 on the file of the Principal Sessions Judge, Kurnool, is the appellant. He was tried by the learned Sessions Judge under the following charges.
(i) First charge was under Section 363 IPC (ii) Second charge was under Section 343 IPC (iii) Third charge was under Section 376(2)(n) IPC 2
(iv) Fourth charge was under Section 5(1) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act'), and
(v) Last charge was under Section 506 IPC.
2. Substance of the charge is that in the month of November 2013, the accused kidnapped the victim girl PW.1, wrongly confined her in his house for a period of one week and committed aggravated penetrative sexual intercourse with her for a period of one week and threatened her stating that he will kill her and her mother if she disclose about the offence, thereby committed the offences punishable under Sections 363 IPC, 343 IPC, 376(2)(n) IPC, Section 506 IPC, and Section 5(1) r/w Section 6 of the POCSO Act.
After completion of the trial, the learned Sessions Judge convicted the appellant under Section 363 IPC and sentenced him to undergo Rigorous Imprisonment for a period of seven years and also to pay a fine of Rs.20,000/-, in default to undergo Simple Imprisonment for a period of three months.
Learned Sessions Judge further convicted the appellant under Section 343 IPC and sentenced him to undergo Rigorous Imprisonment for a period of two years and also to pay a fine of Rs.10,000/-, in default to undergo Simple Imprisonment for a period of two months.
Learned Sessions Judge also convicted the accused under Section 376(2)(n) IPC and sentenced him to suffer Imprisonment for LIFE i.e., 3 remainder of his natural life and also to pay a fine of Rs.1,00,000/-, in default to suffer Simple Imprisonment for a period of six months.
Learned Sessions Judge further convicted the accused under Section 5(1) r/w Section 6 of the POCSO Act and sentenced him to suffer Imprisonment for LIFE and also to pay a fine of Rs.1,00,000/-, in default to undergo Simple Imprisonment for a period of six months.
Learned Sessions Judge also convicted the accused under Section 506 IPC and sentenced him to suffer Rigorous Imprisonment for a period of two years and also to pay a fine of Rs.10,000/-, in default to undergo Simple Imprisonment for a period of two months.
The fine amount of Rs.2,20,000/- is directed to be paid to PW.1 towards compensation. All the substantive sentences imposed against the accused were directed to run concurrently.
Learned Sessions Judge further recommended the victim for compensation under Section 357(A) Cr.P.C. to the District Legal Services Authority, Kurnool, to decide the quantum of compensation to be awarded under the Scheme referred in Sub-section (1) of Section 357(A) Cr.P.C., as the victim girl is an unmarried minor girl, who was sexually assaulted by the accused and was leading miserable life in the society with her male child.
Aggrieved by the said conviction and sentence, the accused preferred the present appeal.
4
3. Case of the prosecution, briefly, is as under:
(a) PW.1 along with her mother PW.2 was residing at Khaji Sab lane situated near Chittari street Junction, Kurnool town. The accused, who is residing at Khadakpura lane, used to ply Auto at Chittari street junction. PW.1 used to go to Kids Park in the Auto of the accused. In the month of November 2013, when PW.1 was coming from Kids Park and when she reached near the Congress Party Office, the accused was found in his Auto. Immediately, the accused asked PW.1 to board his Auto stating that he will drop her at her house. She replied stating that she was not having money. Then, the accused informed her that she need not pay money and he will drop her at free of cost. PW.1 boarded the Auto and when the accused was going towards Bongula Bazar, she questioned the accused. He informed her that he is going to his house for collecting a bag and stopped the Auto at his residence. After reaching the house, the accused asked PW.1 to see his house. When she refused, the accused caught hold of her hand and forcibly took her inside the house. Thereafter, he closed the doors and committed aggravated penetrative sexual intercourse by biting her hands and legs and also putting clothes in her mouth. The accused confined her in his house for a period of one week. Whenever the accused used to go out, he used to lock the door from outside. He committed aggravated penetrative sexual intercourse for a period of one week. After one week, he left her threatening her with dire consequences that he will kill her and her mother if she discloses the incident to anyone. Due to fear and for the sake of reputation of the 5 family, the victim did not inform her mother also. Subsequently, PW.1 became pregnant and then only she informed her mother PW.2. Due to fear and for the sake of reputation of the family, PWs 1 & 2 did not inform anyone. PW.1 went to the hospital, where the Doctors confirmed her pregnancy and refused for abortion as it was danger to her life as she was carrying 5th month pregnancy. Thereafter, PW.1 delivered a male child. After one year, when PW.2 approached the accused, he denied the paternity of the child.
Subsequently, having come to know that the accused involved in similar crime i.e., Cr.No.76 of 2015 of Kurnool I Town Police Station, PWs 1 & 2 approached the police and informed about the commission of offence.
(b) On 23.07.2015 at about 2.30 P.M., PW.5 Inspector of Police, Kurnool I Town Police Station, received Ex.P1 report from PW.1 and registered a case in Cr.No.81 of 2015 under Sections 366, 343 and 376 IPC and Section 5 r/w Section 6 of the POCSO Act. He issued copies of F.I.R. to all the concerned. Ex.P5 is the F.I.R. PW.7 S.D.P.O. received F.I.R. and visited Kurnool I Town Police Station. He secured presence of PWs 1 & 2 through Women Inspector PW.8 and recorded their statements with the help of Women A.S.I. He visited the house of the accused situated at House No.15/121-2, upstairs and prepared a Rough Sketch Ex.P7. As the offence took place in the year 2013, he did not seize any material object due to lapse of time. On 27.07.2015, he filed a Memo before the Court for recording statements of PWs 1 & 2 under Section 164 Cr.P.C. PW.6 Judicial Magistrate of First Class (Special Mobile Court), Kurnool, recorded statements of PWs 1 6 & 2 under Section 164 Cr.P.C. Section 164 Cr.P.C. statements were marked as Exs.P2 & P2-A.
(c) On the same day, PW.7 filed a petition under Section 53(a) Cr.P.C. for collecting blood samples of the accused for the purpose of D.N.A. analysis for verification of the paternity of the child of the victim under Ex.P8. As the potency test of the accused was already conducted in Cr.No.76 of 2015, he did not make any requisition again for potency test of the accused. Attested copy of the potency test marked in POCSO S.C.No.5 of 2016 was marked as Ex.P4. As the accused was already in custody in Cr.No.76 of 2015 of I Town Police Station, Kurnool, PW.7 produced him under P.T. Warrant in this case. On 04.09.2015, PW.7 made a requisition to the A.P.F.S.L., Hyderabad for collecting blood samples of PW.1 and her child in order to compare them with the blood samples of the accused through the Letter of advice Ex.P9. On 18.09.2015, learned Judicial Magistrate of First Class, Kurnool made a requisition to the Director, F.S.L., Hyderabad for collecting blood samples of the accused for D.N.A. profile in order to compare the same with the blood samples of PW.1 and her child under Ex.P10. On 18.09.2015, the accused, PW.1 and her son were produced before the F.S.L., Hyderabad and blood samples were collected for the purpose of D.N.A. profile to determine the paternity of the child. Blood samples were collected by the F.S.L. authorities at Hyderabad. On 10.02.2016, PW.7 received F.S.L. report dated 08.02.2016 disclosing that the accused is the biological father of the male child of PW.1 and the said report along with Annexure of D.N.A. profile is marked as 7 Ex.P12. PW.7 collected Study certificate of PW.1 issued by PW.3, which is marked as Ex.P3. After completion of investigation, PW.7 filed charge sheet.
4. In support of its case, the prosecution examined PWs 1 to 8 and marked exhibits P1 to P13.
5. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating material appearing against him. Accepting the evidence of PWs 1 & 2 coupled with F.S.L. report Ex.P12, learned Sessions Judge convicted the appellant as aforesaid.
6. Heard Sri G.Vijaya Saradhi, learned counsel for the appellant, and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the State.
7. Learned counsel for the appellant contends that PW.1 went along with the accused voluntarily and the accused did not kidnap her from the lawful guardian of PW.2. He further contends that though PW.1 remained in the house of the accused for a period of one week, she did not raise hue and cry and as such, he states that PW.1 is a Consenting Party. Learned counsel for the appellant further contends that though the incident took place in the month of November 2013, PW.1 resorted to approach the police on 23.07.2015 i.e., nearly after three years. As such, the delay on the part of PWs 1 & 2 in giving report to the police is abnormal and as such, he states that no reliance can be placed on the evidence of PWs 1 & 2. Finally he requested this Court to allow 8 the appeal by setting aside the conviction and sentence recorded by the learned Sessions Judge.
8. On the other hand, learned Additional Public Prosecutor vehemently opposed the appeal contending that due to fear and reputation of the family, PWs 1 & 2 did not give report to the police. He further contends that the Expert evidence adduced by Ex.P12 i.e., F.S.L. report confirms that the appellant is the biological father of the son of PW.1. After evaluating D.N.A. profile, the Experts of the F.S.L., Hyderabad gave their opinion stating that the appellant is the biological father of the son of PW.1. As such, he sought for dismissal of the appeal by confirming the conviction and sentence recorded by the learned Sessions Judge.
9. We have carefully analyzed the entire evidence on record.
10. (a) PW.1 in her evidence has categorically stated that in the month of November 2013, the accused forcibly took her to his house and confined her for a period of one week. He further stated that the accused committed aggravated penetrative sexual intercourse with her for a period of one week. PW.1 in her evidence stated that because of the threat given by the accused and for the sake of reputation in the society, she did not disclose the commission of the offence, committed by the accused, to anyone. PW.1 further stated in her evidence that she is wearing silver toe rings in order to avoid the abuse from the society as she is unmarried. PWs 1 & 2 in their evidence categorically stated that it is only after they came to know the 9 commission of similar offence by the accused, which was the subject matter of Cr.No.76 of 2015 of Kurnool I Town Police Station, they went to the Police and gave a report. The delay in lodging report has been properly explained by PWs 1 & 2.
(b) Coming to the medical evidence, the prosecution is relying on the F.S.L. report Ex.P12. The Experts of the F.S.L., Hyderabad after evaluating the entire D.N.A. analysis, came to the conclusion that the accused is the biological father of the son of PW.1. As such, there is nothing to disbelieve Ex.P12.
(c) So far as the contention of the learned counsel for the appellant that PW.1 went voluntarily along with the accused is concerned, it cannot be accepted, as PW.1 was minor on the date of commission of offence. Ex.P3 Study Certificate issued by the concerned authorities, shows that the age of PW.1 was 13 years on the date of offence. As such, even if PW.1 stated that she went voluntarily along with accused, the same cannot be construed as consent as she is minor on the date of offence.
11. Having analyzed the entire evidence on record, we have no hesitation to come to a conclusion that the appellant has committed the offence and the prosecution is able to prove the same beyond reasonable doubt.
12. In view of the above facts and circumstances, there are no grounds to interfere with the conviction and sentence recorded by the learned Principal 10 Sessions Judge, Kurnool in POCSO S.C.No.21 of 2016 vide judgment dated 07.03.2017.
In the result, this Criminal Appeal is dismissed, confirming the conviction and sentence recorded by the learned Principal Sessions Judge, Kurnool, in POCSO S.C.No.21 of 2016 vide judgment dated 07.03.2017.
As the appellant was already convicted in POCSO S.C.No.5 of 2016 on the file of the learned I Additional Sessions Judge, Kurnool and was sentenced to suffer imprisonment for LIFE, which shall mean remainder of his LIFE, the sentence imposed in the present POCSO S.C.No.21 of 2016 shall also run concurrently along with the said imprisonment as per the provisions of Section 428(2) Cr.P.C.
As a sequel, interlocutory applications pending, if any, shall also stand closed.
__________________ K.SURESH REDDY, J _____________ V.SUJATHA, J Date: 03.04.2025 MVA