Andhra Pradesh High Court - Amravati
Mahankali Syam vs The State Of A.P. on 29 September, 2023
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
CRIMINAL APPEAL No.294 of 2016
JUDGMENT:
1. Accused in Sessions Case No.08 of 2015 on the file of the learned Special Judge Constituted under Protection of Children from Sexual Offences Act-cum-Additional Metropolitan Sessions Judge, Vijayawada [for short, "the trial Court"], is the appellant herein. He was tried for the offences punishable under Section 366, 342, 376(2) r/w Section 376(2)(n) of the Indian Penal Code, 1860 [for short, "I.P.C."] and Section 6 r/w 5(1) of the Protection of Children from Sexual Offences Act, 2012 [for short, "POCSO Act"].
2. Vide Judgment, dated 01.07.2015, the learned Sessions Judge convicted the Accused under Section 235(2) of Cr.P.C. Accordingly, he was sentenced to suffer Rigorous Imprisonment for three (3) years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand only), in default, to suffer Simple Imprisonment for six months for the offence under Section 366 I.P.C. Further, he was sentenced to suffer Rigorous Imprisonment for ten (10) years and to pay a fine of Rs.20,000/- (Rupees twenty thousand only), in default, to suffer Simple Imprisonment for six months for the offence punishable under Section 376(2) r/w Section 376(2)(n) I.P.C., alternatively Section 6 r/w 5(1) of POCSO Act. Both the sentences were directed to run concurrently. The fine amount of Rs.30,000/- was directed to be paid to the victim girl towards compensation. However, the 2 T.M.R., J Crl.A.No.294 of 2016 accused was found not guilty of the offence punishable under section 342 of I.P.C. Accordingly, he was acquitted.
3. For the sake of convenience, the parties will be referred to as arrayed before the trial Court.
4. Considering the nature of the crime, I am not disclosing the victim's name, members of her family, as well as the witnesses of that area (locality); therefore, wherever required, they have been described by their witness number.
5. The prosecution case, as elucidated in the written report-Ex.P1, dt.05.11.2014 submitted by PW.1 (mother of P.W.2-victim), unfolds as follows:
On 03.11.2014 at 9:00 a.m., PW.2, her daughter, left for work at the binding shop as usual, but she did not return in the evening.
Concerned about her daughter's absence, PW.1 contacted a person named Narasimha Rao, who informed her that her daughter had not shown up for work. On 05.11.2014, PW.1 went to the I Town Police Station and filed Ex.P1, the written report, to report her daughter's disappearance.
6. Based on the Ex.P1 report, P.W.11-Head Constable registered as a case in Crime No.669 of 2014 under the Head Girl Missing; Ex.P10 is the F.I.R.; recorded the statements of P.Ws.1, 3, 4 and 5. Later, the P.W.13- Inspector of Police took up the investigation and he asked the Woman 3 T.M.R., J Crl.A.No.294 of 2016 Head Constable to record the statement of P.W.2-victim on 11.11.2014 where she stated about the sexual assault by the accused against her; based on the said statement, he altered the section of law to Section 343, 376(2)(n) I.P.C. and Section 6 of POCSO Act from "Girl Missing"; Ex.P11 is the altered F.I.R.; later he sent the victim girl to Government Hospital for medical examination along with Woman P.C., P.W.8-Dr. R. Sowjanya examined the victim girl and issued an Ex.P6-wound certificate; she received an Ex.P7-RFSL report, which reveals that blood and semen are not detected on specimens and 07.01.2015 she issued a final opinion with an observation that "even though chemical analysis report came as negative, clinically there was evidence of sexual intercourse". During the investigation, the Investigation Officer recorded the statements from various witnesses, including the victim. The Investigation Officer gathered the medical evidence and other relevant evidence. Subsequently, on 17.11.2014, the accused was arrested under the cover of Ex.P5-Mediators' report. Upon concluding the investigation, P.W.12- Inspector of Police filed a charge sheet against the accused for the offences punishable under Sections 343, 376(2)(n) I.P.C. and Section 6 of the POCSO Act.
7. The Special Judge Constituted under the Protection of Children from Sexual Offences Act-cum-Additional Metropolitan Sessions Judge, Vijayawada, has taken on file as Sessions Case No.08 of 2015. On 4 T.M.R., J Crl.A.No.294 of 2016 appearance, furnished the copies of the documents to the accused under Section 207 Cr.P.C. Based on the material available on record, Charges under Section 366, 342 I.P.C. and Section 6 r/w. 5(1) of the POCSO Act, alternatively Section 376(2)(n) of I.P.C., have been framed against the accused, read over and explained to the accused. He pleaded not guilty and claimed for trial.
8. The Prosecution examined P.Ws.1 to 14 to prove the case and got marked Exs.P1 to P12. On behalf of the accused, no oral or documentary evidence was adduced. After completing the prosecution evidence, the Sessions Judge examined the accused under Section 313 Cr.P.C., concerning the incriminating circumstances appearing against him in the evidence of prosecution witnesses, which he denied. The defence was of total denial and false implication.
9. After considering the necessary material available on record, the learned Sessions Judge found the guilt of the accused/appellant and convicted him as stated supra. Aggrieved by which, the present appeal has been preferred.
10. At length, I have heard the submissions by Sri M. Chalapati Rao, learned counsel for the appellant/accused and the learned Assistant Public Prosecutor for the Respondent/State. I have gone through the entire evidence produced before the trial Court. 5
T.M.R., J Crl.A.No.294 of 2016
11. Learned counsel for the appellant contends that the trial Court should have seen that the victim girl was aged about 17 years as per the version of the Prosecution, the appellant and victim girl loved each other and spent three days in the house of the appellant, which is not an offence since her age was 17 years; there is a delay of 7 days in lodging the report and the trial Court failed to appreciate the evidence and understand the case of the Prosecution and mechanically gave conviction.
12. Per contra, the learned Assistant Public Prosecutor for the Respondent/State opposed the same, contending that the Prosecution has successfully demonstrated that the accused committed an aggravated penetrative sexual assault on the victim girl, even if it is assumed that the accused had intercourse with the victim girl even with her consent, the same amounted to an offence punishable under Section 6 of POCSO Act; the evidence of victim is plausible and in view of the statutory presumption under section 29 of the POCSO Act, the Prosecution stands proved; absence of injuries or minor contradictions in the prosecution evidence cannot be a ground to disbelieve the version of a minor victim of sexual assault. She strongly supported the findings made by the learned trial Judge. She submitted that the testimony provided by the eyewitnesses and the medical evidence conclusively established that the accused engaged in a sexual act with the victim girl 6 T.M.R., J Crl.A.No.294 of 2016 against her will. The trial Court has considered the testimony of the prosecutrix, which remains the basis of the allegation, and there is no cross-examination on those allegations. Therefore, the testimony of the victim has been rightly relied on. The vital prosecution witnesses remained steadfast in their statements during cross-examination, and their testimony in Court was consistent with the statements they made during the investigation.
13. I have perused the material papers, the deposition of the witnesses, and the trial Court's Judgment. I have given my thoughtful consideration to the rival contentions made on behalf of the parties. After hearing the learned counsel for the parties and the case facts while adverting to the arguments so advanced, the following question would arise for determination:
Whether the Prosecution was able to bring home the guilt of the accused for the offences punishable under Section 366 of I.P.C., and Section 376(2) r/w 376(2)(n) I.P.C alternatively Section 6 r/w 5(1) of the POCSO Act beyond reasonable doubt?
P O I N T:
14. To appreciate the rival contentions made by the learned counsel appearing for both parties, it will be proper to reproduce the salient portion of significant evidence of the prosecution witnesses. 7
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15. The victim girl is examined as P.W.2; PW.1 is her mother; PW.3 is her father; P.W.4 is her junior paternal uncle. The evidence of P.W.1 (mother of the victim) shows that on 03.11.2014, P.W.1 attended her job at a binding shop, but she did not return home; then, she contacted P.W.4, who informed her that P.W.2 did not participate in the binding shop on that day; they enquired and searched for her daughter; on 05.11.2014 she approached I Town Police Station and lodged Ex.P1 report. In this regard, P.W.4 stated that on 04.11.2014 at about 7.00 p.m., his sister-in-law (P.W.1) telephoned him about the non-return of P.W.2 from his binding shop. He informed non-attendance of P.W.2 to the binding shop on that day; they searched for her, and on the following day, they approached I Town Police and lodged a case.
16. P.W.3 testified that on 04.11.2014, when he returned home after attending work, P.W.1 informed him about the non-return of P.W.2 to the house; on the next day, they lodged a report;
17. Upon closely examining the testimonies of P.Ws.1, 3, and 4, it is apparent that the defence did not dispute their accounts of the victim's failure to return home on 04.11.2014 and the subsequent report filed by P.W.1. Furthermore, the evidence adduced by these witnesses is corroborated by the testimony of P.W.11, the then Head Constable at II Town Police Station. P.W.11 stated that on 04.11.2014, P.W.1 came to the police station and filed Ex.P1, a report. Subsequently, on 05.11.2014 8 T.M.R., J Crl.A.No.294 of 2016 at 21:30 hours, he registered it as a case under "Girl Missing," with Ex.P10 serving as the First Information Report (F.I.R.). P.W.11 also confirmed that he examined P.Ws.1, 3, 4, and 5 as part of the investigation. It is important to note that, despite the defence's claim of a delay in filing the report, the evidence provided by P.Ws.1, 3, and 4 offers a clear explanation for the delay in giving the report. Their testimonies establish that they actively inquired about P.W.2's whereabouts and conducted searches, which contributed to the delay. Notably, Ex.P1 report does not name the accused.
18. While the police registered the case, they did not initiate an investigation until the victim girl was located by P.Ws.1, 3, and 4. The delay in the police's investigative efforts was not adequately explained, and there was no reason given for the lack of prompt action. However, it is evident from the evidence adduced by the victim's parents and junior paternal uncle that they made determined efforts to locate their missing daughter. Their testimonies reveal that they were only able to find the missing girl on 10.11.2014. This Court believes that if the police had promptly initiated the investigation, it could have led to the discovery of the missing girl in a shorter timeframe.
19. It is well settled by a catena of judicial pronouncements of the Hon'ble Supreme Court that a victim of sexual assault is the best witness, and her evidence is entitled to great weight, absence of 9 T.M.R., J Crl.A.No.294 of 2016 corroboration notwithstanding. Conviction can be based on the testimony of the prosecutrix alone without insisting on corroboration, even from medical evidence, if the testimony of such a witness inspires confidence. At this juncture, it may be helpful to refer to the evidence of the prosecutrix (P.W.2).
20. P.W.2 provided her testimony, stating that she was acquainted with the accused, who had expressed his love for her and took her to a temple and park. On November 3, 2014, the accused invited her to his village to introduce her to his parents. Although she had informed her parents that she was going to her job at the Binding shop on November 4, 2014, she actually went to the accused's house in Suryapet, where he introduced her to his parents. Later, when the accused's parents were not at home, he sexually assaulted her against her will and threatened her to keep quiet about the incident. The accused confined her for four days during which he continued to sexually assault her despite her resistance and distress. On the evening of the following Saturday, she managed to contact her mother, and on Sunday morning, her mother and her uncle, Narasimha Rao, came to the accused's location to rescue her. They brought her to the Police Station in Vijayawada, where she recounted the ordeal to a female constable who recorded her statement. She was subsequently referred to the Government Hospital for a medical examination, during which the doctor collected her clothing. A female 10 T.M.R., J Crl.A.No.294 of 2016 Inspector of Police also visited the hospital and recorded her statement; later she has given Ex.P2 statement before the Magistrate. P.W.1, P.W.3, and P.W.4 corroborated her account. P.W.1 mentioned that P.W.4 had informed her that Ajay Kumar had seen her daughter with the accused at Durga Temple and Park.
21. To establish the said fact, the Prosecution examined P.W.5-E. Ajay Kumar, who supported the Prosecution's case, testified that he knew the accused and the victim girl; one year ago, he saw the accused and the victim girl at Kanaka Durga Temple and also at Rajiv Gandhi Park, at Fish Market, Srinivasa Mahal on a bicycle; he came to know about missing of the victim girl, then he informed P.W.4 about his witnessing of them at the above places.
22. The P.W.5's evidence is not disputed in cross-examination. The P.W.5's evidence establishes that he noticed the moving of the accused and P.W.2 before registering the crime. As seen from the defence, it is not the accused's case that he did not know P.W.2 before reporting the crime. According to the defence version, the accused had a love affair with P.W.2, and both decided on marriage. It is suggested to P.W.2 in the cross-examination that elders, without understanding the love, foisted this false case against the accused to get rid of him. The evidence of P.W.1 shows that on 10.11.2014 at about 10.30 a.m. P.W.2 telephoned and informed her of where she was through the mobile phone of the 11 T.M.R., J Crl.A.No.294 of 2016 accused, as his mobile was in the room and kept for charging. Then, P.W.1 and P.W.4 immediately rushed to the scene of the offence and found a missing girl, and the accused escaped. They also approached the local Police, questioned the accused's mother, and brought the accused and the victim girl to the Police Vijayawada. The evidence of P.W.3 and 4 supports the evidence of P.W.1 and P.W.2.
23. P.W.4's testimony reveals that on November 10, 2014, the victim girl contacted P.W.1 by phone and informed her that she was at the accused's house near Suryapet. Upon receiving this call, P.W.1 and P.W.4 hurried to the village and located the girl. P.W.2, the victim, disclosed to them that the accused had subjected her to harassment and rape over a period of four days. Villagers also gathered at the scene. P.W.1 and P.W.4, along with the accused and the victim girl, then handed them over to the police. Interestingly, despite the consistent accounts provided by P.Ws.1 to 4 regarding the handing over of the accused and the victim girl to the police, the prosecution adduced the evidence in court as if the accused had been arrested on November 17, 2014, based on Ex.P5, a mediators' report. This discrepancy raises questions about the accuracy of the timeline and the handling of the case by the police.
24. The evidence of P.W.13-P.Venkateswarlu, Investigation Officer, shows that on 11.11.2014 at 9.00 a.m. P.Ws 1 to 4 came to the Police 12 T.M.R., J Crl.A.No.294 of 2016 station, and he asked the Women's Head Constable to record the statement of the victim girl. The evidence of P.W.14 shows that on 11.11.2014, she recorded the statement of the victim girl and handed over the same to the Inspector; she also accompanied the Inspector along with staff and mediators to the scene of the offence at Basha Nayak Thanda and prepared the observation report. The evidence of P.W.13 shows that based on the victim girl's statement, he altered the section to Section 343, 376(2)(n) of I.P.C. and Section 6 of POCSO Act from "Girl Missing", Ex.P11 is the altered F.I.R.
25. The evidence of P.W.10, the then A.S.I. of Police, II Town Police Station, shows that on 11.11.2014, the Inspector of Police asked her to record the statement of the victim girl, who was in the Hospital. She went to the Hospital and recorded a statement.
26. P.W.13 evidence shows that on the next day, he, along with mediators P.W.7, P.W.4, L.W.9 and L.W.13, proceeded to the scene of offence located at Basha Nayak Thanda, Suryapet, Nalgonda District and P.W.4 had shown the asbestos house, informing that they took the girl from the said house; he examined the scene of offence and prepared Ex.P12-rough sketch, got drafted Ex.P4-Mediators' report and he collected a lungi available on the cot from the house.
27. P.W.7, a municipal contractor, was called upon by the police to conduct a scene observation at the accused's house in Suryapet. He 13 T.M.R., J Crl.A.No.294 of 2016 stated that on November 12, 2014, he accompanied the police and another individual named Durga Rao to the scene. They conducted the scene observation at approximately 4:00 p.m., resulting in the preparation of Ex.P4, the scene observation report. Subsequently, on November 17, 2014, around 4:00 p.m., they visited the accused's house again, and when the accused attempted to flee, he was apprehended by the police. P.W.7 identified the accused in the courtroom and later prepared Ex.P5, which is the mediators' report. However, it's important to note that the evidence provided by P.W.7 did not yield any incriminating material from the scene of the alleged offense. The seizure of the lungi, for instance, did not contain any evidence that could strengthen the prosecution's case.
28. PW.13's evidence further shows that on 17.11.2014, he received credible information about the presence of the accused; he, along with his staff, surprised his house and arrested the accused under cover of Ex.P5-mediator's report, and he also seized another lungi which he wore at the time of the offence. During the investigation, he sent the accused for a potency test by the doctor.
29. P.W.13, one of the police officers involved in the case, failed to provide an explanation for the delay in arresting the accused. Notably, the accused had been brought to the police station by P.Ws.1 to 4 on November 10, 2014, itself. However, P.W.13's testimony suggested that 14 T.M.R., J Crl.A.No.294 of 2016 he only received information about the accused on November 17, 2014. This inconsistency in the timeline of events has not been clarified by the prosecution. Furthermore, it's worth mentioning that the prosecution did not assert that the lungi seized from the scene contained any incriminating evidence related to the alleged offense. Consequently, there is no explanation for the failure to arrest the accused promptly when he was already brought to the police station on November 10, 2014.
30. The evidence of P.W.9-Dr.B.Srinu Naik, shows that on 02.12.2014, he received a requisition from the Inspector of Police, II Town Police Station, to conduct a Potency Test of the accused; Urologist, Psychiatrist, Neurologist and himself examined the accused and opined that there is nothing to suggest that the accused is not capable of performing sexual intercourse and issued Ex.P9-Potency Certificate. The evidence of P.W.9 is not disputed in the cross-examination.
31. The evidence of P.W.12 shows that he took up the investigation and filed the charge sheet upon receiving the final opinion.
32. As seen from the defence, the accused has not seriously disputed the staying of P.W.2 in his house from 04.11.2014 to 10.11.2014. To establish that P.W.2 was noticed in the accused's house, the Prosecution also examined P.W.6. His evidence shows that he knows the family of the accused, who resided in his house as tenants; on 08.11.2014, he went to Thanda to ask for rent, then he found the accused and a victim girl, but 15 T.M.R., J Crl.A.No.294 of 2016 the parents of the accused were not there. He asked the accused about the victim girl; he informed her that she was his relative.
33. The defence did not dispute the age of the victim girl. The prosecution relied on Ex.P3, which is the birth certificate of P.W.2 (the victim girl), to establish her age. According to this birth certificate, the victim girl's date of birth is recorded as January 17, 1998, making her approximately 16 years and 10 months old at the time of the incident. The prosecution consistently maintained that the victim girl was a minor. It's essential to note that the birth certificate is an official document that records a person's date of birth. Such documents are generally considered reliable sources of information regarding a person's age. In this case, there was no dispute or contradiction regarding the date of birth mentioned in Ex.P3. Therefore, the trial court accepted the evidence produced by the prosecution regarding the victim girl's age, which supported the contention that she was a minor at the time of the alleged offence.
34. The Hon'ble Apex Court in Jarnail Singh v. State of Haryana1, deciding the procedure for determining the age of victim of rape, was of the view that the procedure for determining juvenile's age as provided in Rule 12 (supra) may be adopted for determining victim's age. It is held as under:
1 (2013) 7 SCC 263 16 T.M.R., J Crl.A.No.294 of 2016 "22. On the issue of the determination of the age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12, referred to hereinabove, reads as follows:
"12.Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with the law, prima facie based on physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with the law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the School (other than a play school) first attended, and in the absence whereof;
(iii) the birth certificate given by a corporation, a municipal authority, or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case 17 T.M.R., J Crl.A.No.294 of 2016 may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save, and except where further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule (3) and the Act, requiring dispensation of the sentence under the Act for passing an appropriate order in the interest of the juvenile in conflict with the law."
35. Given the above settled legal position, it is clear that even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, I am of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. Thus, it is clear that for the determination of the age of the victim, primacy shall be given to the Date of Birth (for short, "DoB") mentioned in the matriculation (or equivalent) certificate, in the absence thereof, DoB mention in the School first attended by the victim shall be taken into consideration, in absence of both, the entries made by a Corporation 18 T.M.R., J Crl.A.No.294 of 2016 or a Municipal authority or a Panchayat regarding DoB shall be taken into account and finally if none of those mentioned above document containing DoB is available, medical evidence regarding age of the victim, shall be taken into consideration. It is clear that neither ocular evidence nor any other document shall be considered for age determination.
36. As seen from Ex.P3, the Prosecution has produced the Birth Certificate of P.W.2 issued by the Registrar of Births and Deaths, Municipal Corporation, Vijayawada. The evidence of P.W.2 coupled with Ex.P3 establishes the date of birth of the victim girl. P.W.3 also stated about the age of the victim girl. The defence also contends that the victim girl was 17 years old. Thus, there is no dispute that as of the alleged offence date, the victim was aged about 16 years and 10 months.
37. It is the P.W.2's evidence that on 04.11.2014, she came out of the house, informing her parents that she was going to the binding shop. She had gone to Bus Stand and got down at Suryapet, and the accused took her to his house, introduced her to his parents, confined her for four days, and committed penetrative sexual assault on her. It is the defence submission that as the victim girl went to the accused's house on her own, Section 366 of I.P.C. has no application to the facts of the case. It is relevant to extract the sections 361 and 366 of I.P.C., which are as under:
19
T.M.R., J Crl.A.No.294 of 2016 "361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with the 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]."
38. The Hon'ble Apex Court in Thakorlal D Vadgama vs State of Gujarat2, observed thus:
"........The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force, and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go", to escort" or "to get into possession". No doubt, it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some may be quite subtle, depending on their success on the mental State of the person when the inducement is intended to operate. This may work immediately, or it may create a continuous and gradual but imperceptible impression culminating after some time in achieving its ultimate purpose of successful inducement. The two words "take" and "entices", as used in Section 361, I.p.c In our opinion,. are intended to be read together so that 2 (1973) 2 SCC 413 20 T.M.R., J Crl.A.No.294 of 2016 each takes its colour and content from the other to some extent. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I. P.C. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian s custody or keeping and going to the guilty party...
39. By referring to Sections 361 and 366 of I.P.C., and the above citation, the learned trial Court concluded that the accused's acts made the minor girl go to a place without the consent of her guardian, which is said to be a kidnap. The evidence of P.W.2 shows that the inducement made by the accused influenced the minor girl to leave her guardian's custody. As rightly observed by the trial Court, the material on record shows that the accused made P.W.2 come to Suryapet. After that, he took her to his house without the guardians' consent, and the contention that P.W.2 herself went to Suryapet is unsustainable. By giving those reasons, the trial Court convicted the accused persons for the offence under Section 366 I.P.C.
40. It is the submission on behalf of the accused that no external or internal injuries were found in the person of the prosecutrix. Therefore, the prosecution case is not to be believed, as any corroborative evidence does not support it. At this stage, I refer to the evidence of P.W.8- Dr.R.Sowjanya, Assistant Professor, to appreciate the accused's contention. Her evidence shows that on 11.11.2014 at 9.40 p.m., and 21 T.M.R., J Crl.A.No.294 of 2016 issued Ex.P6-wound certificate on 18.11.2014, she received Ex.P7-RFSL report, and the report revealed that blood and semen were not detected on specimens; on 07.01.2015 she issued Ex.P8-Final opinion with an observation that "even though chemical analysis report came as negative, clinically there was evidence of sexual intercourse".
41. In a decision reported in Phool Singh vs State of Madhya Pradesh3, the Hon'ble Apex Court relying on the judgment in State of U.P. vs. Pappu4, wherein it is observed thus:
"10. .....this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the Court to absolve the accused. This Court further held that there could be a conviction on the sole testimony of the prosecutrix. If the Court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under :
"12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."3
(2022) 2 S.C.C. 74 4 2005 (3) SCC 594 22 T.M.R., J Crl.A.No.294 of 2016
42. In light of the above principles and also considering the evidence of P.W.8, which shows clinically there was sexual intercourse, this Court finds that the submission made by the defence in this regard cannot be accepted.
43. In the case of the rape of a minor girl, the victim's consent is immaterial. Further, the sole testimony of the prosecutrix is enough. It is a settled law that conviction may be recorded on the sole testimony of the victim prosecutrix if her evidence inspires confidence. In the case of State of Punjab Vs. Gurmit Singh and Others5, the Hon'ble Apex Court held that:
"The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with case involving sexual mole stations. The Court has further held that the evidence of the victim of sexual assault stands almost on par of with the evidence of injured witness and to an extent even more reliable. Such evidence is entitled to great weight, corroboration not required".
44. Further, observation of the Hon'ble Apex Court in O.M.Baby (Dead) by LRs.v. State of Kerala6 is also to be noted for better appreciation. It runs as follows:
"19. In the context of Indian Culture, a woman victim of sexual aggression, would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind 5 1996 (2) SCC 384 6 (2012) Cri LJ 3974 (SC) 23 T.M.R., J Crl.A.No.294 of 2016 that no self-respecting woman would put her honour at stake by falsely alleging the commission of rape on her and therefore, ordinarily, a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape, nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
45. Further, this Court finds that while ordinarily there is a 'presumption of innocence' vis-a-vis an accused, section 29 of the POCSO Act reverses this position. Section 29 of the POCSO Act creates a 'presumption of guilt' on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. Section 29 reads as follows:
"Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
In the context of Section 29, the other provisions of the POCSO Act which also need attention are Section 30 of that statute, which is extracted herein below for ease of reference :
30. Presumption of culpable mental State.--(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental State. Still, it shall be a defence for the accused to prove that he had no such mental state with respect to the Act charged as an offence in that Prosecution."
46. Furthermore, it is also well settled that in cases involving sexual harassment, molestation, etc., the Court is duty-bound to deal with such 24 T.M.R., J Crl.A.No.294 of 2016 cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction, and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice.
47. It is, however, the general law of the land that, particularly in cases of sexual abuse, the victim's version of the incident cannot be discarded merely because there is no ocular evidence in support thereof. The law requires the Court to ascertain whether the victim's version has a ring of truth.
48. From the evidence described above on record, the narration of the incident by the victim girl is convincing and corroborated by other prosecution witnesses and materials on record.
49. On the overall appreciation of the material before the trial Court, the judgment of the conviction cannot be faulted. The trial Court read the evidence in the proper perspective, considered relevant considerations, and appropriately dealt with the matter. The sentence awarded is in accordance with law, and the trial Court had no discretion in the matter, particularly considering that the case is aggravated sexual assault. 25
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50. On evaluating the deposition of P.W.2-victim on the touchstone of the law laid down by the Hon'ble Apex Court in the decisions mentioned above, the Court is of the considered opinion that the testimony of the victim (P.W.2) is trustworthy and unblemished, and her evidence is of sterling quality. Therefore, without any further corroboration, the conviction of the accused relying upon the testimony of the prosecutrix can be sustained.
51. Having regard to the ratio of Judgments cited supra, and applying the same to the evidence and the facts and circumstances of the case, I am of the considered opinion that the findings of the Trial court with regard to the guilt of the accused for the offences under section 366 and 376(2) of I.P.C. alternatively Section 6 of POCSO Act is well founded.
52. The trial Court has found the accused guilty and convicted for the offences under Section 376(2) I.P.C. alternatively under Section 6 of the POCSO Act, and he is sentenced to undergo Rigorous Imprisonment for ten (10) years and to pay a fine of Rs.20,000/-, by giving its reasons.
53. The trial Court rightly relied upon the evidence of the victim girl and the accused was found guilty; the charges are proved against the accused beyond reasonable doubt. I find no reason to interfere with the judgment of the trial Court. Hence, I confirm the findings against the accused.
26
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54. As a result, the Criminal Appeal is dismissed. The conviction and sentence imposed on the appellant by the Trial Court in S.C.No.8 of 2015 dated 01.07.2015, is hereby confirmed. The Additional Metropolitan Sessions Judge, Vijayawada, is directed to secure the custody of the accused/appellant to undergo the remaining period of imprisonment, if the accused obtained any bail, during the pendency of the appeal. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon the appellant in terms of Section 428 of Cr.P.C.
Miscellaneous applications pending, if any, in this appeal, shall stand closed.
__________________________________ JUSTICE T. MALLIKARJUNA RAO Date: 29.09.2023 MS 27 T.M.R., J Crl.A.No.294 of 2016 THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL No.294 of 2016 Date: 29.09.2023 MS