APHC010879942016

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3486]

WEDNESDAY, THE THIRTY FIRST DAY OF JULY TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

CRIMINAL APPEAL NO: 913/2016

Between:

Kondelu Krupa Rao, East Godavari Dst., ...APPELLANT

AND

The State of AP Rep PP ...RESPONDENT

Counsel for the Appellant:

1.S SASIKALA

Counsel for the Respondent:

1.PUBLIC PROSECUTOR (AP)

The Court made the following:

JUDGMENT : (Per the Hon'ble Sri Justice K.Sreenivasa Reddy)

This Criminal Appeal is preferred by the appellant/sole accused in POCSO Sessions Case No.127 of 2015 on the file of the Special Sessions Judge for the trial of the cases under the POCSO Act, 2012 – cum – I Additional Sessions Judge, East Godavari at Rajahmundry (hereinafter referred to, as 'the Special Judge').

Vide the impugned judgment dated 14.07.2016, the appellant herein/sole accused was found guilty of the charge under Section 376 (2) (i) IPC and Section 5 (m) read with 6 of the POCSO Act and also of the offence under Section 376 (2) (i) read with 511 IPC and further under Section 5 (m) punishable under Section 6 read with 18 of the POCSO Act, and is accordingly convicted of the said offences and sentenced to suffer imprisonment for life, which shall mean imprisonment for remainder of his natural life, and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for one year, for the offence punishable under Section 376 (2) (i) IPC and 5 (m) read with 6 read with 18 of the POCSO Act. He is further sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for one year for the offence punishable under Section 376 (2) (i) read with

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511 IPC and Section 5 (m) and 6 read with 18 of the POCSO Act. Both the sentences were ordered to run concurrently.

Case of the prosecution, in brief, is that the accused is resident of Ramisettipeta, Uppada village, U.Kothapalli mandal and was eking out his livelihood by catching and selling fish. P.W.2, who is victim No.1, is daughter of P.W.1. P.W.3, who is victim No.2, is daughter of P.W.4. Victims were studying 1st class in M.P.P. Elementary School, Suryaraopeta. The accused married one Jyothi about 13 years prior to the incident, and after giving birth to a son by name John, the said Jyothi died consuming poison. Thereafter, the accused married one Malleswari and they begot two children.

The accused and P.W.4 are friends and the accused used to go to house of P.W.4 and have meals. On 20.12.2014 at about 6.30 PM, the accused went to house of P.W.1 and had chit-chat with P.W.6, who is a physically challenged person, and promised him to provide a fish. The victims 1 and 2 were in the verandah of the house. At that time, P.W.7 was present in his house at Verandah. On seeing the victim girls, the accused hatched a plan to take them outside to fulfil his lust. The accused informed P.W.6 that he was taking the victim girls outside to provide them eatables

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(pappalu) from the shops. Believing the words of the accused, P.W.6 allowed him to take the victims, and the same was seen by P.W.7.

It is alleged that the accused took the victim girls towards Light House side on the beach road to fulfil his sexual desire, and at that time, P.W.5, who is younger sister of P.W.1, was proceeding to her house after completing cooli work and saw the accused at 7.00 PM on beach road at Suryaraopeta, nearby the place meant for calls of nature, but she could not identify the victim girls and thought that they were children of the accused. Between 7.00 PM and 8.45 PM on that day, the accused took the victim girls to Light House side on beach road, and by the side of the rubbish road, committed rape on the victim girls by aggravated penetrative sexual intercourse and caused vaginal grievous bleeding injury in the vagina of P.W.2 and vaginal injury to P.W.3, and spoiled their chastity.

At about 8.30 PM on 20.12.2014, P.W.1 went to the house of P.W.4 to enquire about her daughter as she thought that her daughter went to house of P.W.4. She asked P.W.6 about her daughter. On that, he stated that the victim girls were taken outside by the accused for arranging eatables. When she again went to house of P.W.4 at 9.00 PM, P.W.3 returned to house. On that, she returned to her immediately. At that time, she found P.W.2 sitting at the doorsill with tremor. When enquired, P.W.2 stated that 'Aa abbayi' had them to garden. At that time, she observed blood coming from clothes of P.W.2. Then, P.W.1 removed her skirt for washing legs and observed that blood was oozing out continuously from vagina of P.W.2. On that, P.W.1 made a call to P.W.4 and asked to come to her house. Immediately, P.W.4 came to house of P.W.1 and saw oozing of blood. P.W.3 was also brought to house of P.W.1. P.Ws.1 and 4 took the victim girls to P.W.10-R.M.P., who, on examining the private parts of the victims, advised them to take the victims to Government General Hospital, Kakinada opining that they were exposed to rape. Police were informed about the incident. On the instructions of P.W.19-Sub Inspector of Police, L.Ws.21 and 22-beat constables took the victims girls along with P.Ws.1 and 4 to the Government General Hospital, Kakinada immediately for treatment to save their lives and joined in hospital by 12.00 midnight. P.W.19 secured presence of P.W.18-woman HC 2717 in mufti as there was no female SI or ASI in Kakinada Town, and on receipt of hospital intimation, instructed P.W.18 to record statement of P.W.1 and the victim girls.

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On receipt of hospital intimation and statements of P.Ws.1 to 3, a case in Crime No.130 of 2014 of Thimmapuram police station was registered for the offences punishable under Sections 376 (2) (i) IPC and 3 (a) and 4 and 5 (m) of the POCSO ACT, 2012 on 21.12.2014 at 4.00 AM. P.W.20-Sub Divisional Police Officer took up investigation, visited the Hospital, recorded statements of witnesses, seized clothes of the victim girls in the presence of mediators, visited the scene of offence, prepared rough sketch of the scene of offence No.1, and as per school records, date of birth of P.W.2 is 9.5.2007 and her age is 7 years 7 months and 11 days as on the date of the offence, and the date of birth of P.W.3 is 10.10.2007 and her age is 7 years 2 months 10 days as on the date of offence. The accused was arrested on 24.12.2014 at 3.30 PM and in pursuance of his confession, his clothes were seized in the presence of mediators and got him remanded to judicial custody. P.W.13-Assistant Professor, Obstetrics and Gynaecology, Rangaraya Medical College, GGH, Kakinada treated the victims during intervening night of 20/21.12.2014 at 12.00 mid night, preserved swabs and specimens collected from both the victims and forwarded the same under requisition to RFSL, Vijayawada for analysis. She issued wound certificates of the victims and kept opinion pending for receipt of RFSL report. The accused admitted

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that he is a potent for sexual intercourse and put his thumb impression to that effect in the presence of the Superintendent, Sub Jail, Kakinada. Basing on the RFSL report, P.W.13 issued a certificate stating that rape had occurred on P.W.2, who is a minor, and in respect of P.W.3, she opined that congestion present at the introitus and sexual intercourse might not have happened on her. After completion of investigation, police laid the charge sheet.

The case was taken cognizance for the offence punishable under Sections 376 (2) (i) IPC and 3 (a) and 4 and 5 (m) read with 6 and 29 of the POCSO Act, 2012. The accused was furnished with copies of documents. Charges for the offences under sections 376 (2) (i) IPC and 3 (a) punishable under Section 4 and Section 5 (m) read with 6 and 29 of the POCSO Act, 2012 were framed against him, and when the same were read over and explained to him, he pleaded not guilty and claimed to be tried.
To substantiate its case, prosecution examined P.Ws 1 to 21 and got marked Exs.P.1 to P.15 and P.17 to P.24, and M.Os.1 to 10. After completion of prosecution side evidence, the accused was examined under Section 313 CrPC to explain the incriminating circumstances appearing against him. He denied the same. No oral or documentary evidence has been adduced on behalf of defence. After hearing both sides, the appellant/accused was convicted and sentenced by the learned Special Judge, as stated supra.
Learned counsel appearing on behalf of appellant/accused submits that there are no eye-witnesses to the alleged incident; that there were disputes between the family of victims and the accused with regard to some debts, and so, a false case is foisted against the accused; that the victims did not state the name of the accused before police and stated 'Aa abbayi', and no test identification parade is conducted by the prosecution to identify the assailant; that even as per medical evidence, the offence of rape has not been established as against victim No.2. He further submits that there are several inconsistencies and omissions in the evidence of prosecution witnesses, and hence, no reliance can be placed on it for convicting the accused. He further submits that the learned Special Judge failed to comply with the mandatory requirement of Section 35 (1) of the POCSO Act, 2012 by examining the victims within one month of taking cognizance, which is fatal to the case of prosecution. Hence, he prays to set aside the impugned judgment and acquit the accused.

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On the contrary, learned Special Public Prosecutor for State contends that the evidence of P.Ws.2 and 3, who are victims, is consistent, and their evidence, coupled with the evidence of P.Ws.1, 4 to 7, would clinchingly establish that it is the accused and none else, who committed the offence alleged. He further submits that the ocular testimony is supported by medical evidence, P.W.13 and Exs.P11 to P15. He further submits that the learned Special Judge gave plausible explanation for not complying with the mandatory requirement of examining the victims within one month from the date of taking cognizance, as contemplated under Section 35 (1) of the POCSO Act, 2012 and in view of the same and in the facts and circumstances of the same, non-compliance of the said provision is not fatal to the case of prosecution, and the learned Special Judge, on examination of the evidence on record, rightly found the accused guilty, accordingly convicted and sentenced him and there are no grounds to interfere with the impugned judgment.
Now the point for determination is whether the prosecution is able to bring home the guilt of the appellant/accused for the charges levelled against him beyond reasonable doubt and whether the convictions and sentences passed by the learned Special Judge are sustainable or not?

P O I N T:-

The allegation is that on 20.12.2014 between 7.00 PM and 8.45 PM, the accused committed rape on the victim girls, who are minors, on Beach Road, Suryaraopeta, Kakinada Rural mandal. P.Ws.2 and 3 are the victim girls. P.W.1 is mother of P.W.2. P.W.4 is father of P.W.3. To substantiate that the victim girls were minors at the relevant point of time of the incident, prosecution examined P.W.14-Head Mistress of M.P.P. School, Suryaraopeta. According to her, at request of police, she issued Exs.P17 and P18-date of birth certificates of P.Ws.2 and 3 respectively. As per Ex.P17, date of birth of P.W.2 is 09.05.2007 and as per Ex.P18, date of birth of P.W.3 is 10.10.2007. Her evidence remained unchallenged and there is no cross-examination on defence. P.W.1, who is mother of P.W.2, and P.W.4, who is father of P.W.3, also deposed about the ages of their respective children. There is no dispute with regard to their ages. Therefore, it can be concluded that the victim girls were minors at the time of the incident.
Coming to the evidence, P.W.1, who is mother of P.W.2, deposed that P.W.2 is her daughter, who is aged about 7 years. She deposed that 5 days prior to Christmas festival in the year 2014, P.W.2, her daughter, and P.W.3, her niece, came from

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school. She provided food to them and thereafter they went to her mother's house for playing. At about 7.00 PM, when she went to her mother's house and enquired about P.W.2, her mother replied that P.Ws.2 and 3 played there and went away. After returning to her house, when she again went to her mother's house and enquired about P.W.2, P.W.6, who is younger brother of her mother, who is physically challenged, told that the accused took away P.Ws.2 and 3. While they were searching for the children, at about 9.00 PM, P.W.3 came to house of her mother. When enquired, P.W.3 did not give any reply and when asked loudly, she revealed that the accused took her and P.W.2 to one garden. When asked as to where was P.W.2, P.W.3 revealed that P.W.2 went to her house. Then, P.W.1 went to her house from her mother's house and found P.W.2 shivering by sitting in front of door of her house. P.W.1 found blood coming from her clothes, and when examined as to from where blood was coming, it was found that blood was coming from her vagina. P.W.2 revealed that the accused had taken her and P.W.3 on the ground of providing some chocolates, committed rape on her ('paduchesadu'), and that when P.W.3 protested saying that she would reveal to her father, the accused stopped committing rape after some time.

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P.W.1 also deposed about informing about the incident to her brother P.W.4 and taking the girls to P.W.10-Doctor in the village, who advised them to take to Government Hospital on the ground that both the children were raped, and thereafter, police coming to her house and shifting the victims to Government Hospital, Kakinada. She also deposed about women police recording her statement and statements of both the victims. Ex.P1 is her statement.

P.W.2 is the first victim. The learned Special Judge, after putting some preliminary questions to ascertain whether the witness is capable of understanding rationale of questions, and after satisfying with the answers, examined the witness. P.W.2 stated names of her parents and that she was aged about 7 years. She deposed that the accused spoiled her (paduchesadu). She deposed that the accused took her and P.W.3 into bushes and spoiled them. She specifically deposed that their urine passage organ was spoiled by the accused, and due to that blood was bleeded out from her urine passage organ. She deposed that the accused put cloth into her mouth and tied P.W.3 to a tree and committed rape against them, and the accused left her after the incident and untied P.W.3 from the tree and also committed rape against P.W.3. It is her evidence that the accused brought them from that place to some distance and dropped them at centre and then she reached home and P.W.3 went to her home. She also deposed about informing about the incident to her mother, taking her to a Doctor and providing treatment to her.
P.W.3 is the second victim. The learned Special Judge, after putting some preliminary questions to ascertain whether the witness is capable of understanding rationale of questions, and after satisfying with the answers, examined the witness. P.W.3 stated that she was studying 2nd class and she knows the accused. She deposed that the accused is friend of his father and about one year back, the accused took her and P.W.2 to provide chocolates and took them to bushes and committed obscene act against P.W.2, who received bleeding, and she was present there. She further deposed that the accused tied her to a tree and kept cloth in the mouth of P.W.3, and after committing the obscene act ('buthupani') against P.W.2, he untied her from the tree and tried to commit the same act against her, and when she told him that she would reveal the incident to her father, he freed her. She deposed that there was bleeding from private part of P.W.2. She corroborated the evidence of P.W.1 with regard to P.W.1 coming to her house and

asking her as to where she had gone and she revealing the facts to P.W.1.

P.W.4 is father of P.W.3 and brother of P.W.1. He deposed that on the fateful day, on being informed by P.W.6 that the accused took away his daughter P.W.3 and also P.W.2, he started searching for the children by going out and returned home by 9.00 AM and found his daughter in home lying on bed. In the meanwhile, he received a phone call from his sister (P.W.1), who informed him that P.W.2 was bleeding out. He asked P.W.1 to bring her to a Doctor and asked P.W.3 as to what happened, and on that, P.W.3 revealed that the accused took them on the pretext of providing eatables, tied her to a tree and committed rape against P.W.2, and when the accused tried to rape her, she protested saying that she would tell the same to her father and on that the accused stopped the act. He deposed that both the victims were taken to Doctor at about 10.00 PM on that day and the Doctor examined them and advised to take the children to Government Hospital.
P.W.5 is younger sister of P.W.1. She deposed that in the year 2014, five days prior to Christmas festival, while she was returning from her work at about 7.00 PM, she found the accused

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taking away two girls and she could not notice description of the said two girls, as it was dark.

The evidence of P.W.6, who is physically challenged, goes to show P.W.1 is his niece and P.Ws.2 and 3 are his granddaughters by courtesy. P.W.4 is son of his sister and P.W.5 is his niece. In the year 2014, during Christmas days, at about 6.00 PM, the accused took away P.Ws.2 and 3 saying that he would purchase chocolates to them, and he witnessed the same. He also deposed that he informed the same to P.W.4 when the latter came and asked about P.Ws.2 and 3, and after some time, P.W.3 came to the house.
The evidence of P.W.7, who is elder brother of P.W.4, goes to show that on the fateful day, at about 6.15 PM, the accused took away P.Ws.2 and 3, and at about 8.30 PM, he came to know that the children did not return to home. P.W.8 did not support the case of prosecution and was declared hostile. P.W.9 informed about the incident to police by phone.
P.W.10, private Doctor who examined the victims, deposed that on 20.12.2014 at about 9.00 PM, P.W.1 and one Raju brought P.Ws.2 and 3 to him with complaint of bleeding from private part of P.W.2 and after examination of the victims, he opined that P.W.2 was subjected to rape and as such advised P.W.1 to take the children to Government Hospital.
P.W.11 acted as a mediator for seizure of M.Os.1 to 8 under Ex.P3-Mahazar. He also acted as one of the mediators for observation of scene of offence under Exs.P4 and P5. He also acted as a mediator for Exs.P8 and P9-scene observation reports in the presence of P.W.2. Police arrested the accused in the presence of P.W.12 and seized M.Os.9 and 10. Ex.P10 is the Mahazar.
P.W.13 was working as Assistant Professor in Rangaraya Medical College, Kakinada in Gynaec Department. She deposed that on 21.12.2014 at 1.00 AM, P.W.2 was brought to the hospital by her mother with history of bleeding pervagina since 9.00 PM. She examined P.W.2 and found that there was active bleeding from vagina, and a 2 x 2 cm tear present in the middle of the introitus and she applied pressure pack to stop bleeding. She deposed that hymen remained not intact; multiple tears of 3 x 2 cm in right lateral vaginal wall; 3 x 2 cm in left lateral vaginal wall; 2 x 1 cm in 2'o clock position of vagina and active bleeding present over all the tears. She deposed that as per her clinical examination findings and investigations and RFSL reports, rape has occurred on the

victim girl, P.W.2. Ex.P11 is the wound certificate and Ex.P12 is the final opinion relating to P.W.2.

P.W.13 further deposed that on the same day, she examined P.W.3 and on local examination, congestion was present at the introitus; no bleeding hymen intact. She deposed that as per clinical and investigation reports and RFSL reports, sexual intercourse might not have happened on P.W.3. Ex.P14 is the wound certificate and Ex.P15 is the final opinion. R.F.S.L. report of both the victims P.Ws.2 and 3 is marked as Ex.P13.
In cross-examination of P.W.13, it is elicited that the tears in the vagina of P.W.2 could not be possible by coming into contact with branches of trees, etc.
P.Ws.2 and 3-victim girls fully supported the case of the prosecution with regard to the alleged act of the accused. Their evidence is consistent throughout. The evidence of P.W.1, who is mother of P.W.1, is consistent. Nothing has been elicited in crossexamination of P.W.1 to discredit her testimony. The alleged omissions suggested to P.W.1 in her cross-examination were not suggested to P.W.20-investigating officer in his cross-examination, who is maker of earliest version of P.W.1. In the absence of eliciting the same in cross-examination of P.W.20-investigating

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officer, the alleged omissions cannot be said to be proved. Further, it is elicited in cross-examination of P.W.2 that she was told by her mother as to how to speak in Court. There is nothing unusual or unnatural in P.W.1, being mother of P.W.2, telling P.W.2 as to how to speak in the Court. On that ground, the consistent version of P.W.2 cannot be discarded. Coming to evidence of P.W.3, it was elicited that she did not state before police that she raised cries. It is a minor contradiction and would not go to the root of the case. Coming to evidence of P.W.4, though it was elicited in his cross-examination that he did not state before police that his daughter (P.W.3) informed him that the accused tied her to a tree and committed rape against P.W.2 and tried to commit rape against her. But, the alleged omission suggested to P.W.4 in his crossexamination was not suggested to P.W.20-investigating officer in his cross-examination, who is maker of earliest version of P.W.4. In the absence of eliciting the same in cross-examination of P.W.20-investigating officer, the alleged omission cannot be said to be proved.

From the evidence of P.W.6, who is younger brother of mother of P.W.1, it is clear that the accused took away P.Ws.2 and 3 on the fateful day on the pretext of providing some eatables.

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Admittedly, P.W.6 is a physically challenged person and is not able to walk. It is clear from his deposition that he was brought into the Court by two persons. Therefore, his presence at the house is quite natural and probable at the relevant point of time of the accused taking away P.Ws.2 and 3 on the fateful day. From the evidence of P.W.5, it is clear that in the year 2014, five days prior to Christmas festival, while she was returning from her work at about 7.00 PM, she found the accused taking away two girls. The evidence of P.Ws.5 and 6 is also consistent and nothing significant has been elicited in their cross-examination to discredit their testimony. Therefore, from the evidence of P.Ws.1, 4 to 7, the prosecution is able to prove that the accused took away P.Ws.2 and 3 from the house of P.W.4 to provide eatables. P.Ws.1 to 7 have no grouse or enmity against the accused to implicate falsely in a case of this nature. Except hurling some suggestions, which were denied by the material prosecution witnesses, nothing has been elicited in their cross-examination to discredit testimony. The evidence of P.Ws.2 and 3 is quite consistent with regard to the accused committing rape on P.W.2 and attempting the same on P.W.3. Minor omissions, if any, elicited in the cross-examination of material prosecution witnesses would not go to the root of the case. Main substratum of prosecution case remained undisturbed.

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Further, medical evidence is consistent with the ocular testimony insofar as rape committed against P.W.2. From the evidence of P.W.13, there is some sort of injury on private part of P.W.3 and there was congestion present at the vagina of P.W.3. Therefore, from the evidence of P.W.3, coupled with medical evidence of P.W.13 and the recitals in Exs.P14 and P15, there is some act by the accused on the private part of P.W.3 but he could not penetrate into her private organ. Therefore, it can be concluded that the accused made an attempt to commit rape on P.W.3 and to commit penetrative sexual assault.

In the aforesaid facts and circumstances of the case, a presumption is available under Section 29 of the POCSO Act, 2012 which states that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the POCSO Act, 2012, the Special Court shall presume that such person has committed the offence, unless contrary is proved. From the evidence on record and in view of the aforesaid findings, the prosecution discharged its initial burden and therefore the presumption can be drawn that the accused person committed the offence, but the accused failed to prove the contrary.

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P.W.19 worked as Sub-Inspector of Police, Timmapuram Police Station at the relevant point time of the incident. He deposed that he received a telephone call from one Simhadri, who is an elderly person of Suryaraopeta village, with regard to the alleged incident, and on that, he sent Police Constables, who joined the victims in Government General Hospital, Kakinada. He further deposed that he proceeded to the hospital along with P.W.18, who recorded the statements of P.Ws.1 to 3 from 1.45 AM to 3.15 AM and basing on the same, registered a case in Crime No.130 of 2014 of Timmapuram Police Station under Ex.P20 FIR. He received Ex.P19-Hospital Intimation.
P.W.20, worked as Deputy Superintendent of Police at relevant point time of the incident. His evidence would reveal that during course of investigation, he recorded the statements of witnesses, visited first scene of offence i.e. house of P.W.4 and got prepared rough sketch-Ex.P21, visited the Government Hospital along with Woman Constable and got recorded the statement of P.W.3 under video coverage and at the instance of P.W.3, he visited the second scene of offence, where rape took place and prepared rough sketch-Ex.P22. He arrested the accused and in the presence of mediators under the cover of Mahazarnama and got

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him remanded to judicial custody. He obtained birth certificates of both the victims, got videographed the scene of offence. He forwarded the material objects to the RFSL, Vijayawada under Ex.P23-Letter of Advice and on receipt of report and after completion of investigation, filed the charge sheet.

After the ghastly incident, when blood was oozing from the private part of P.W.2 and when P.W.3 was subjected to some sort of injury, the victims would be in a condition of shock. The victims have prior acquaintance with the accused and that is the reason why they believed him and went along with him, when he offered some eatables. The identity of the accused as the assailant is established. In the case on hand, there is direct evidence of the injured to prove the alleged incident. Therefore, the words 'Aa Abbayi' as mentioned in Ex.P1 would not affect the prosecution theory in any way.
The defence theory is that the victims received the injuries as they came into contact with some bushes when they went to attend calls of nature. On this aspect, it is pertinent to refer to the evidence of P.W.13-Doctor in her cross-examination. It is elicited in her cross-examination that the tears in the vagina of P.W.2 could not be possible by coming into contact with branches of trees, etc. From her evidence, it is clear that she found active bleeding from the vagina of P.W.2 and 2 x 2 cm tear present in the middle of introitus and she applied pressure pack to stop the bleeding, and hymen remained not intact. Furthermore, no parent would allow the tender aged female children like P.Ws.2 and 3 to go for calls of nature alone in that odd hours of 6.00 PM to 9.00 PM. Therefore, the said defence theory is not at all acceptable.
In view of the fact that the occurrence of the incident in question came to the notice of the police within a couple of hours and all possible steps were taken to provide medical aid to the victims and recording their statements by a woman constable P.W.18, and the accused was arrested within four days of the offence, there is no infirmity in not referring the accused for medical examination.
Section 35 of the POCSO Act, 2012 deals with the period for recording evidence of child and disposal of case. As per Section 35 (1) of the Act, the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence. It also stipulates that the reasons for delay, if any, shall be recorded by the Special Court. In the case on hand, admittedly, the evidence of the victims could not be recorded within one month

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from the date of taking cognizance by the Special Court. A perusal of the impugned judgment goes to show that the learned Special Jude offered reasons therefor stating that after taking cognizance of the case on 16.10.2015, the case was adjourned to 27.10.2015; that the accused took adjournments to engage a counsel on his own but did not engage a counsel for several adjournments, and ultimately, he filed a representation to appoint a State Brief, and the same was forwarded to the District Legal Services Authority, which appointed a State Brief, who made his appearance after one or two adjournments, and thereafter, trial schedule came to be fixed. It is also the explanation of the learned Special Judge that the said Court was entrusted with special jurisdiction under various Statutes viz. the POCSO Act, the NDPS Act and the Electricity Act, apart from the cases under the Motor Vehicles Act, 1988 and Suits, Civil Appeals, Criminal Appeals, etc. and the pendency of cases under the special jurisdiction is also very high and hence, it was impracticable to post the matter within one month from the date of taking cognizance and to comply necessary formalities before fixing trial schedule. However, the case was disposed of, within one year from the date of taking cognizance of the offence, as contemplated under Section 35 (2) of the POCSO Act, 2012. In the light of the reasons offered by the learned Special Judge and in the facts and

circumstances of the case, this Court opines that the learned Special Judge offered a plausible explanation for no recording the evidence of the victims within a period of one month from the date of taking cognizance of the offence and the same is not fatal to the case of the prosecution.

The learned Special Judge, on proper appreciation of entire oral and documentary evidence on record, rightly found the appellant herein/accused guilty of the offences and accordingly, convicted and sentenced him of the charges levelled against him, which warrants no interference by this Court. The Criminal Appeal is devoid of merits and is liable to be dismissed.
Accordingly, the Criminal Appeal is dismissed, confirming the judgment dated 14.07.2016 passed in POCSO Sessions Case No.127 of 2015 on the file of the Special Sessions Judge for the trial of the cases under the POCSO Act, 2012 – cum – I Additional Sessions Judge, East Godavari at Rajahmundry.

As a sequel, pending miscellaneous petitions, if any, shall stand closed.

JUSTICE K. SURESH REDDY

JUSTICE K. SREENIVASA REDDY

31st July, 2024. DRK

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THE HONOURABLE SRI JUSTICE K.SURESH REDDY AND THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

JUDGMENT IN

CRIMINAL APPEAL No.913 OF 2016

(Per the Hon'ble Sri Justice K.Sreenivasa Reddy)

31.07.2024

DRK

Kondelu Krupa Rao vs. The State Of Ap.

AI Summary

Order Issued After Hearing

Original Order Copy

Order Text