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2023 DIGILAW 660 (AP)

Miriyala Vajram v. State of AP. , Rep PP.

2023-04-03

CHEEKATI MANAVENDRANATH ROY

body2023
JUDGMENT : Assailing the judgment, dated 30.09.2016, passed in Special Sessions Case No.9 of 2016 on the file of the Special Judge under Protection of Children from Sexual Offences Act-cum-I Additional District and Sessions Judge, West Godavari, Eluru, whereby the appellant, who is the sole accused in the said case, was convicted for the offence punishable under Section 5(m) r/w. Section 6 of the Protection of Children from Sexual Offences Act, 2012, (for short, the “POCSO Act”), r/w. Section 376(2)(i) of IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/-, and, in default of payment of fine, to undergo simple imprisonment for a period of three months, for the aforesaid offence, the instant Criminal Appeal has been preferred by the appellant. 2. Facts germane to dispose of this Criminal Appeal, as unfolded from the evidence of the prosecution witnesses examined in the case during the course of trial, may, briefly, be stated as follows: (a) PW.2 was minor at the time of the commission of the offence and was aged about 6 years at that time. She is the daughter of PW.1. The accused is the resident of the same village and was residing at Somalamma Pet of Gowripatnam village, Deverapalli Mandal. He is residing alone in his house. His wife has been residing separately from him. PW.1 along with her husband and children has been also residing in the same vicinity near to the house of the accused. She got three children. PW.2 is one of her daughters. (b) On 03.06.2015 at about 4.30 p.m., the two daughters of PW.1 i.e., her elder daughter and the victim girl PW.2, along with other children of the locality, have been playing in a vacant site located behind the house of PW.1. At that time, the accused came to that place and offered chocolates to the children playing at that place and lured them. Other children went away from the said place. But, PW.2, who is the victim girl, who is a minor, followed him as he lured her by offering chocolates to the said child and he took her into his house. Thereafter, the accused made her lie near the hearth in his house and lifted her skirt and laid on the minor girl, PW.2, and did an activity on the minor girl. Thereafter, the accused made her lie near the hearth in his house and lifted her skirt and laid on the minor girl, PW.2, and did an activity on the minor girl. (c) The elder sister of PW.2, who was also a minor girl, who went away along with other children after the accused lured them by offering chocolates to them, went and informed to her mother, who is PW.1, that the accused took PW.2 into his house by offering chocolates to her. Suspecting some danger to her minor daughter PW.2, PW.1 immediately rushed to the house of the accused and when she went into the house of the accused, she saw the accused lying on her minor daughter PW.2. Immediately, when she raised shouts, the accused got up and pushed PW.1 aside and ran away from his house. PW.1 checked the clothes and private parts of her minor daughter PW.2. She found semen stains on her stomach and skirt and found that the accused committed aggravated penetrative sexual assault on the victim girl. She immediately, brought PW.2 to her house and informed the said fact to the neighbours and relatives. PW.1 took her minor daughter PW.2 to the hospital. (d) On receipt of intimation from the Medical Officer on Duty, Pw.9, who is the Head Constable of Devarapalli Police Station, went to the hospital and recorded the statement of PW.1. On the basis of the said statement, he registered a case in Crime No.79 of 2015 of Devarapalli Police Station, against the accused for the offence punishable under Section 376(2) of IPC and Section 5(m) r/w.Sec.6 of the POCSO Act. Thereafter, PW.10, who is the Inspector of Police, took-up investigation in this case. On the instructions of PW.11, PW.8, a woman constable, recorded the statement of the victim girl, who is a minor, examined as PW.2. Thereafter, PW.11, who is the Investigating Officer, examined the scene of offence in the presence of mediators and also examined the witnesses and recorded their statements. He has also obtained certificate in proof of date of birth of the victim girl from PW.5, who is the Head Mistress of MPP Main School, Gowripatnam, where the victim girl PW.2 was studying. Ex.P4 is the said study certificate containing the date of birth of PW.2, which shows that she was a minor. He has also obtained certificate in proof of date of birth of the victim girl from PW.5, who is the Head Mistress of MPP Main School, Gowripatnam, where the victim girl PW.2 was studying. Ex.P4 is the said study certificate containing the date of birth of PW.2, which shows that she was a minor. The accused was also sent for medical examination and PW.4, who examined him, opined that there is nothing to indicate that he is incapable of performing sexual intercourse. The doctor, who is examined as PW.7, who examined the victim girl PW.2, after receipt of chemical analysis report, has given her final opinion stating that there is no evidence of recent sexual intercourse, but there was bleeding and the hymen of the vagina is teared and vagina is admitting one finger. After receipt of the opinion of the doctors, who examined the victim girl PW.2, and the accused, and after completion of the investigation, the Investigating Officer laid the charge-sheet in the Court of the Special Judge for trial of cases under the POCSO Act-cum-I Additional District and Sessions Judge, West Godavari, Eluru, against the accused as he found that the accused has committed an aggravated penetrative sexual assault against the victim girl PW.2 and committed the offence punishable under Section 5(m) r/w.6 of the POCSO Act r/w. Section 376(2)(i) of IPC. (e) The trial Court has taken cognizance of the said case, framed charge against the accused for the offence punishable under Section 5(m) r/w. Section 6 of the POCSO Act r/w. Section 376(2)(i) of IPC. The charge was read over and explained to the accused and the accused pleaded not guilty and claimed to be tried. (f) During the course of trial, the prosecution got examined PW.1 to PW.11 witnesses and got marked Exs.P1 to P12 documents and M.Os.1 to 4 material objects to substantiate its case against the accused. (g) Thereafter, the accused was examined under Section 313 Cr.P.C. to enable him to explain the incriminating evidence adduced against him by the prosecution. The accused did not adduce defence evidence on his behalf. (g) Thereafter, the accused was examined under Section 313 Cr.P.C. to enable him to explain the incriminating evidence adduced against him by the prosecution. The accused did not adduce defence evidence on his behalf. (h) At the culmination of the trial, after hearing both the prosecution and the accused and after appreciating the evidence on record, the learned trial Judge found the accused guilty for the offence punishable under Section 5(m) r/w.6 of the POCSO Act r/w. Section 376(2)(i) of IPC, and accordingly, convicted and sentenced him to undergo imprisonment, as stated supra. 3. Aggrieved thereby, the instant Criminal Appeal has been preferred by the appellant questioning the legality and validity of the impugned judgment of conviction and sentence. 4. When the appeal came up for hearing before this Court, heard learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent State. 5. As per the submissions made by the learned counsel for the appellant, the legal validity of the impugned judgment of conviction and sentence is mainly challenged on the ground that the medical evidence on record as can be seen from Ex.P7 preliminary report and Ex.P8 final report and Ex.P9 RFSL Report and also the evidence of PW.7 the doctor, who examined the victim girl PW.2, show that there is no evidence of committing recent sexual intercourse on the victim girl as semen was not detected at the time of examination of the victim girl, which clearly proves that there is no act of penetrative sexual assault committed by the accused against PW.2 or to show that any offence of rape was committed against PW.2 by the accused. He would contend that the trial Court did not appreciate the medical evidence on record properly and arrived at an erroneous conclusion that there is penetrative sexual assault committed by the accused against PW.2. He would then contend that as the accused refused to sell away his property as demanded by PW.1 and her husband that they bore-grudge against the accused and got this false case foisted against him. He would then contend that as the accused refused to sell away his property as demanded by PW.1 and her husband that they bore-grudge against the accused and got this false case foisted against him. He would finally contend that except the evidence of PW.1 and PW.2, there is no corroborative evidence to their testimony and in the absence of any corroboration to the evidence of PW.1 and PW.2, it is not safe to rely on the testimony of PW.1 and PW.2 and the trial Court did not properly appreciate the evidence on record. He would submit that the trial Court erred in believing the testimony of PW.1 and PW.2. Therefore, he would submit that the impugned judgment of conviction and sentence of the trial Court is not sustainable under law and thereby prayed to allow the appeal and acquit the accused of the said charges. 6. Per contra, learned Additional Public Prosecutor appearing for the respondent State would contend that the motive attributed by the accused alleging his false implication in the case is absolutely false and he would submit that no mother would venture to involve the modesty of her minor girl for the purpose of wreaking vengeance against the accused simply for not conceding the demand of PW.1 to sell the property of the accused, even if it is true. He would submit that in fact PW.1 or her husband never demanded the accused to sell his property and the accused never refused to sell his property and the alleged motive is only invented by the accused for the purpose of creating false defence in this case. He would also submit that except making a bald assertion to that effect, the accused could not substantiate the said motive attributed by him by adducing evidence worth the name or even by showing any probabilities in this regard. He would then submit that although the doctor PW.7, who examined PW.2, stated that there is no evidence of recent sexual intercourse as semen was not detected, the evidence of the doctor PW.7 clearly shows that she opined that as blood was present and vagina is admitting one finger and hymen of vagina of the victim girl is teared, that the victim girl might have been subjected to sexual intercourse. The said evidence is not challenged in the cross-examination and it clearly proves that the victim girl was subjected to sexual intercourse. He would then contend that it is settled law when the evidence of the victim girl and her mother is found to be trustworthy and inspires confidence in the mind of the Court regarding the veracity of the testimony, the Court can place complete reliance on their testimony without insisting for any corroboration. Therefore, he would submit that after considering the evidence of PW.1 and PW.2, which is trustworthy, coupled with the medical evidence of the doctor, who is examined as PW.7, the trial Court arrived at a right conclusion that the accused has committed an offence of aggravated penetrative sexual assault against the minor girl, who is PW.2, and rightly convicted him and sentenced him to undergo imprisonment, as stated supra. He would submit that the impugned judgment of the trial Court is perfectly sustainable under law and it does not suffer from any legal infirmity. Therefore, he strongly supported the judgment of the trial Court and prayed for dismissal of the Criminal Appeal. 7. In order to prove that the accused has committed an offence of aggravated penetrative sexual assault against the victim girl PW.2, who is a minor, the prosecution mainly relied on the evidence of PW.1, who is the mother of the victim girl, who is also an eye witness to the said incident, and the evidence of the victim girl, who is examined as PW.2, and the evidence of the doctor, who examined the victim girl, who is PW.7. 8. Before considering the said evidence and appreciating the same, it is relevant to note at the outset that the fact that the accused and PW.1 and PW.2 are the residents of the same locality and they are residing in the same vicinity, is absolutely not in controversy. Admittedly, they are residing in the same vicinity. The vacant place, where the children including PW.2 were playing, is behind the house of PW.1. Admittedly, they are residing in the same vicinity. The vacant place, where the children including PW.2 were playing, is behind the house of PW.1. As per the version of the prosecution, when PW.2 along with other children and her elder sister were playing behind the house of PW.1, that the accused approached them and lured them by offering chocolates and when the other children ran away, the accused took the victim girl, who is PW.2, to his house by offering chocolates, and made her lie at the hearth in his house and lifted her skirt and laid on her and did an activity. At that time, on receipt of information from the elder daughter of PW.1, that the accused took PW.2 to his house by offering chocolates to PW.2, immediately, PW.1 reached the house of the accused and she found the accused lying on PW.2 and when she raised shouts that the accused got up and pushed away PW.1 and ran away from the house. This is the substratum of the prosecution case. 9. PW.1, who is the mother of the victim girl, clearly and unequivocally stated in her evidence that when her children went to play, that after sometime, her elder daughter, who is aged about 9 years came and informed her that the accused called the victim girl to his house by offering chocolates to her, and immediately suspecting some foul play by the accused, that she went to his house. Now it is significant to note that she further clearly deposed that she has seen accused lying on PW.2 and she raised shouts and on seeing her that the accused suddenly got up from the victim girl and ran away after pushing her away. She further stated that she took the victim girl outside the house and asked her what has happened in the house and that PW.2 revealed that the accused took her into the house and laid on her and did some activity. She also deposed that thereafter she took the victim girl to the hospital and she was examined by the doctor. 10. She also deposed that thereafter she took the victim girl to the hospital and she was examined by the doctor. 10. Thus, the said evidence of PW.1 clinchingly proves that when she reached the house of the accused after receiving the information from her elder daughter that the accused took PW.2 to his house by offering chocolates, that she has clearly witnessed that the accused lying on PW.2 and that after seeing her that the accused got up from the victim girl and pushed PW.1 away and ran away. Thus, PW.1 is a direct eyewitness, who has witnessed the accused lying on the victim girl in his house. 11. Nothing was elicited in her cross-examination to discredit her testimony given regarding the fact that she saw the accused lying on PW.2 when she reached his house. Except giving suggestions, which are all denied by PW.1, absolutely there is no cross-examination worth the name to impeach the testimony given by PW.1, as discussed supra. PW.1 denied the suggestion that as the accused refused to sell away his house, that she bore-grudge against him and foisted the case. Therefore, there are no valid grounds emanating from the record to disbelieve the testimony of PW.1. Further, no mother would venture to involve the modesty of her own daughter to wreak vengeance against a person, simply on the ground that he refused to sell away his property to her. Therefore, there is absolutely no truth or merit at all in the said defence taken by the accused attributing motive to PW.1. 12. PW.2 is the victim girl who is a minor girl and when the competency of the said victim girl was tested by the learned trial Judge before her examination by putting preliminary questions to her, as she could give rational answers to the said questions, the trial Court could found that the witness is capable of understanding the nature of questions put to her and answering the said questions put to her and that she is capable to give evidence in the Court. 13. 13. PW.2, who is a victim girl in this case, also categorically deposed in her evidence that when she along with other children and her elder sister were playing in a vacant site on the back side of their house, that the accused called her by offering chocolates to her to his house and, thereafter, he made her lie near the hearth and thereafter, the accused removed her skirt and laid on her. She further deposed that after some time, her mother i.e. PW.2 came to the house of the accused and at that time, the accused was lying on her and that on seeing her mother that the accused ran away. She also deposed that thereafter her mother took her to the hospital and doctor examined her. 14. Thus, the evidence of the victim girl also proves that the accused took her to his house by offering chocolates to her taking advantage of her tender age by luring her by offering chocolates and thereafter, made her lie at the hearth and removed her skirt and laid on her. Nothing was elicited in the cross-examination of PW.2, who is the victim girl, to discredit her testimony given regarding the manner in which the accused ravished her. Except giving suggestions, which are all denied by PW.2, nothing worth the name was elicited in her cross-examination to impeach the testimony of PW.2. So, there is absolutely no material whatsoever elicited in the cross-examination to impeach her testimony. So, the evidence of PW.1, which is corroborated by the evidence of PW.2, clinchingly proves that the accused took PW.2 to his house by luring her by offering chocolates to her and thereafter, removed her skirt and laid on her and did an activity. 15. Now, the evidence of the doctor, who has examined PW.2, is relevant in the context to consider. PW.7 is the doctor, who examined the victim girl. She clearly stated that when she examined the victim girl PW.2, she found the hymen of vagina of PW.2 teared and that vagina is admitting one finger, and more particularly, she clearly deposed that bleeding was present. PW.7 is the doctor, who examined the victim girl. She clearly stated that when she examined the victim girl PW.2, she found the hymen of vagina of PW.2 teared and that vagina is admitting one finger, and more particularly, she clearly deposed that bleeding was present. Although, she stated in her evidence that as semen was not detected in vaginal swabs and smear that there is no evidence of recent sexual intercourse, it is relevant to note here that the preliminary report – Ex.P7 was issued subject to the final opinion to be given after receipt of RFSL report. Ex.P9 is the RFSL report and Ex.P8 is the final report given by her. Now, simply because, semen was not detected, it cannot be said with all certainty that there was no penetration. All that is required to prove the offence of ‘penetrative sexual assault’, defined under Section 3 of the POCSO Act is, mere penetration of penis or any object or part of the body into the vagina, mouth, urethra or anus of a child or mere insertion 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, and even if the accused manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child, then also it constitutes an offence of penetrative sexual assault. Section 3 of the POCSO Act, defines ‘penetrative sexual assault’ and it reads thus: “3. Section 3 of the POCSO Act, defines ‘penetrative sexual assault’ and it reads thus: “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.” 16. So, a reading of the aforesaid Section, as discussed above, shows that ejaculation of semen is not a necessary pre-requisite for the purpose of proving penetrative sexual assault. Even without ejaculation of semen, if the evidence on record shows that there is penetration of penis or any object or part of the body of the accused into the vagina of the minor girl, it is sufficient to constitute an offence of penetrative sexual assault as defined under Section 3 of the POCSO Act. Even the same definition is given to the offence under Section 375 of IPC also. 17. If the evidence on record is examined in the light of the aforesaid ingredients of Section 3 of the POCSO Act, the evidence on record clinchingly proves that there has been penetrative sexual assault committed by the accused against the victim girl PW.2. 18. When a penetrative sexual assault is committed on a child below 12 years, it amounts to aggravated penetrative sexual assault under Section 5(m) of the POCSO Act and Section 6 prescribes punishment against the person, who has committed the said aggravated penetrative sexual assault. 19. Ex.P4 is the study certificate of PW.2, who is the victim girl. It is evident from it that the date of birth of the victim girl is 29.08.2009. 19. Ex.P4 is the study certificate of PW.2, who is the victim girl. It is evident from it that the date of birth of the victim girl is 29.08.2009. The offence against her was committed by the accused on 03.06.2015. So, it is evident that as on the date of offence committed against her, she was aged about 6 years. This Ex.P4 certificate was issued by the Head Mistress of the MPP School (M), Gowripatnam, Devarapalli Mandal. To prove this Ex.P4 certificate, the Head Mistress of the said school was examined as PW.5. She stated in her evidence that at request of Devarapalli Police that she issued the said certificate certifying that the date of birth of PW.2 as 29.08.2009 and that Ex.P4 is the certificate issued by her. There is nothing in her cross-examination, which is elicited to discredit her testimony. So, the evidence of PW.5 coupled with Ex.P4 certificate, proves that PW.2, who is the victim girl, was minor, aged about 6 years on the date of offence. So, Section 5(m) of the POCSO Act clearly attracts to the present case as she was below 12 years on the date of offence and the evidence on record, as discussed supra, proves that the accused has committed an aggravated penetrative sexual assault against PW.2. 20. In this context, it is significant to note that PW.7, who is the doctor, who examined PW.2, clearly and unequivocally stated in her evidence that she is of the opinion, after observing that bleeding was present and vagina is admitting one finger and hymen of the vagina of the victim girl was teared, that she might have been subjected to sexual intercourse. As it is a crucial evidence that was given by PW.7, the same is extracted hereunder for better appreciation: “… I am of the opinion having observed that bleeding was present, and vagina admitting one finger and hymen teared, the victim might have subjected to sexual intercourse.” 21. So, it is now evident that the evidence of doctor clearly shows that she is of the opinion that PW.2 might have been subjected to sexual intercourse. The said crucial evidence of PW.7 is in no way shaken in her cross-examination, as nothing was absolutely elicited in her cross-examination to discredit the crucial testimony given by her in her examination-in-chief. So, it is now evident that the evidence of doctor clearly shows that she is of the opinion that PW.2 might have been subjected to sexual intercourse. The said crucial evidence of PW.7 is in no way shaken in her cross-examination, as nothing was absolutely elicited in her cross-examination to discredit the crucial testimony given by her in her examination-in-chief. No suggestion denying that the said evidence is false is also given in her cross-examination. Therefore, when bleeding was found in the vaginal parts of the victim girl PW.2 and the hymen of her vagina was also found to be teared and the same is also admitting one finger, it is sufficient evidence to prove that there has been an act of penetrative sexual assault committed by the accused against PW.2. It is important to note here that both PW.2 the victim girl and PW.1, the mother of PW.2, who witnessed the incident, clearly deposed that the accused after removing the skirt of the victim girl, laid on the victim girl. It is also in evidence that he thereafter did some activity on PW.2. This evidence, coupled with the aforesaid medical evidence, clinchingly proves that there was an act of penetrative sexual assault committed by the accused on PW.2. Therefore, it cannot be said under any stretch of reasoning that the prosecution failed to prove that there was any penetrative sexual assault committed by the accused against PW.2. 22. The trial Court also on proper appreciation of the evidence on record adduced by the prosecution, recorded a clear finding that the accused committed the said offence of penetrative sexual assault against the victim girl PW.2. The trial Court also has given cogent reasons for placing reliance on the testimony of the victim girl, who is minor, and also on the testimony of her mother, who is PW.1. 23. Upon reappraisal of the said evidence on record and after subjecting the same to judicial scrutiny, this Court also found that the evidence of PW.1 and PW.2 is trustworthy and that nothing was elicited in their cross-examination to discredit their testimony and their evidence coupled with the medical evidence of PW.7 clinchingly proves that the accused is guilty of committing the said offence. 24. 24. Therefore, the impugned judgment of conviction and sentence imposed against the appellant is perfectly sustainable under law and it does not warrant interference in this Appeal and the same is not liable to be set aside. 25. Therefore, the Criminal Appeal lacks merit and it is liable to be dismissed. 26. Learned counsel for the appellant implored before the Court that if the Court is inclined to confirm the impugned judgment of conviction and sentence, that as the accused has already undergone imprisonment and has been in jail for the last seven years, that the sentence may be reduced to the said period of sentence already undergone by him. 27. The said request of the learned counsel for the appellant cannot be acceded to for the reason that minimum punishment prescribed for the offence of aggravated penetrative sexual assault under Section 6 of the POCSO Act is imprisonment for a term which shall not be less than ten years and which may extend to imprisonment for life. So, no discretion is conferred on the Court to impose punishment less than ten years period for the offence punishable under Section 6 of the POCSO Act. The minimum sentence to be imposed itself is ten years and the maximum sentence is upto imprisonment for life. Therefore, when minimum sentence to be imposed is ten years, the sentence cannot be now reduced to seven years, as contended by the learned counsel for the appellant. 28. Resultantly, the Criminal Appeal is dismissed confirming the judgment of conviction and sentence imposed against the appellant in Special Sessions Case No.9 of 2016 on the file of the Special Judge under Protection of Children from Sexual Offences Act-cum-I Additional District and Sessions Judge, West Godavari District, Eluru, dated 30.09.2016. Consequently, miscellaneous applications, pending if any, shall also stand closed.