Partly allowed

Shaik Qasim, Warangal Dist. v. The State of Telangana

Telangana HC29 Oct 2024CRLA/1021/2015

Case brief

AI extract

What is this about?

Criminal Appeal against conviction for aggravated penetrative sexual assault under POCSO Act. The Court rejected arguments for conviction under IPC attempt sections, upheld the POCSO conviction based on medical evidence of assault, and partly allowed the appeal by reducing the life sentence to ten years imprisonment.

What did the court decide?

Imprisonment for ten years for the offence under Section 376(2)(i) of IPC and Section 5(m)/6 of the POCSO Act.

Shaik Qasim, Warangal Dist. Vs The State of… — Child Sexual Offences (POCSO) | Telangana HC (2024)

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[^341s ]

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IN THE HIGH COURT^{FOR THE STATE OF TELANGANA} AT HYDERABAD

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TUESDAY,THE TWENTY^{NINTH DAY OF OCTOBER} TWO THOUSAND AND^{TWENTY FOUR}

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PRESENT

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THE HONOURABLE SRI^{JUSTICEK.SURENDER} AND THE HONOURABLE^{SRI JUSTICE ANIL KUMAR JUKANTI}

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CRIMINAL APPEAL^{NO: 1021 OF 2015}

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Appeal under Section^{374 (2) of Cr.P'C'againsttheJudgment} dated 04-06-2015^{made in spl.sc.No.22 of 2014 on the file of the court of the} Special Judge^{for the Trial of cases under Protectionof children from sexual} Offences Act-cum-l^{Additional Sessions Judge, Warangal District'}

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Between:

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Shaik Qasim, S/o.^Sharfuddin, Aoed about 26 vears,^{Occ. CoolieRl/o.} Jayyaram Village^{N/o. Gabveta} Vlllage Raghunathpalli^{MandalWarangal} District State of^Telangana

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'..APPellant^{/ Accused}

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AND

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The State of Telangana,^{Rep. by PublicProseculol (Tp) High CPY{-1I} Hyderabad for the^{state of Telangana and the stateot Andhra Praoesn}

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. ...ResPondent^{/ ComPlainant}

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Sri Mohammed^AbdulQuadeer Counsel for the^APPellant Legal Aid

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Counsel for the^ResPondent Sri Arun Kumar^Dodla Additionat Public^Prosecutor

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The Court delivered^{the following Judgment:}

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THE HON'BLE SRI JUSTICE K.SURENDER AND THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI

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CRIMINAL APPEAL No.1O21 OF 2015

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JUDGMENT: (pe r Hon'ble Sri Jusrice K.surentlcr)

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This Criminal Appeal is Iiled aggrieved by the judgment dated O4.06.2O15 in S.C.No.22 of 2014 rrn the file of the Special Judge for Trial of Cases under protection of Chiidrerr From Sexual Offences Act-cum-l Additional Sessions ..Iuclge, Warangal, convicting the appellant/ accused of the offence under Section 3T 6(2Jbl of lndian Penal Code (Criminal Law (Amendment) Act), Section 5(m) r/w Sections 6 and 7 r/w Section 8 of the protection of Children From Sexual Offences Act, 2Ol2 (for short,^,the POCSO Act') and sentencing him to suffer imprisonment for life of t he offence under Sectio n 3Z 6(21(ll ol IpC (Criminal L,aw (Amendment) Act) and Section 5(m) r/w Section 6 ol the POCSO Act and to pay fine of Rs.5O,00O/and if the said amount is paid, the same shall be paid to the victim as compensation under Section 357 Cr.p.C., and in delault of payment of fine, to suffer Simple Imprisonment for six months.

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Heard Sri Mohammed^Abdul Quadeer,^{Learned Legal} Aid Counsel for the^{appellant/ accused,and Sri Arun} Kumar Dodla, learned^{Additional PublicProsecutor for} respondent-State.

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Briefly the case of^{the prosecution isthat the} appellant/accused,^{whobelongs to the samevillageof the} victim, was acquainted^{with victimgirl-PW'laged about} five years. On^{14.O4.2014,the parents of the victim girl,} went to attend agriculture^{work. The victim girl/PW'I and} her sister were^{only presentin the house'The appellant} went to the house^{of the victim girl and while they were} playing in front of their^{house,gave one rupeeto the} younger sister of victim.^{Then the victim girl also asked} for money and^{the appellantasked the victim girl to come} to his house,^{so that he would give money The victim} girl-PW. 1 and her^{younger sisterwent to the houseof the} appellant/ accused.^{The appellant gaveone rupeeto her} younger sister and sent^{her out.}

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victim girl into his^house, Appellant^{took the} removed her clothes^and also removed his Pant^and

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underwear and kept his penis on the lips of the victim and asked the victim to suck his penis. Then he slept on the victim and attempted to commit rape on her.

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Further, according to victim girl_pW. l, when appellant 1.ried to insert his penis in the place where she passes uritre, she suffered pain and as such she cried. In the meanurhile, her younger sister aiso came. tsoth of them went to their house weeping. pW.2, the mother of the victim g1iri, after going to the house found pW. 1 c:rying. PW.2 askecl the victim girl the reason and pW.l narrated the incident. pW. I was taken to the police Station and a written complaint - Ex.p1 was Iiled by pW.2. In the complaint. il was narrated that appellant/ accused took PW. I to his; house and promised to give one ruper: and thereafter liiid her on bed and removed her clothes, his pant and his underwear and tried tb put his penis under her abdome:r The victim girl was sent for examination by the police. 'I'he victim girl was examined by pW.4, rvho is the Civil Assistant Surgeon in CKM Hospital, Warangal. PW.4 found no external injuries on her body, but, on examination of her private parts, external genetalia rvas

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conjested and erythematous (reddish), hymen was found ruptured. PW.4 collected two swabs from vagina and also two smears and sent them for examination to the Forensic Science Laboratory (FSL). On receipt of FSL report, pW.4 opined that an attempt of rape was made on the victim and Ex. P2 is the preliminary report, Ex. P3 is the final report and Ex.P4 is the FSL report.

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Having concluded the investigation, charge sheet was filed. Learned Special Judge, considering the evidence of PW.4 - the Civil Assistant Surgeon, victim girlPW. I's evidence corroborated by the complaint and testimony of mother of the victim and other witnesses, found that the appellant perpetrated the crime of raping the victim-PW. 1, who was aged five years.

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7 . Learned I-egal Aid Counsel appearing for the appellant would submit that even according to pW.4 - the Doctor, there was an attempt of rape on the victim - pW. 1. In cases of attempt being made, the offence may fall under Section 376 r /w Section 51 1 of IPC or under Section 18 of the POCSO Act.

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B. Learned Legal Aid Counsel relied on the judgment of the Hon'ble Supreme Court in Koppula Venkat Rao v. State of A.P.,I and stated that the Hon'ble Strpreme Court, whil<-' dealing with a case of rape, found on facts that there was no intercourse that was established and no actual ralle was established for which reason the conviction was altered from Section 376 IPC to Section 51 i IPC. Learned Legal Aid Counsel also relied on the judgment of Bombay High Court in Shankar Tukaram Utsal v. State of Maharashtra2, wherein the Bombay High Courl dealt with the issue of rape of a girl aged five years and found on facts that though there was an attempt to rape and penetration was not established, as requrrecl under Section 376 IPC, as such the offence committed is not the one under Section 376 IPC and accordingl5, altered the conviction to Section 376 r/w Section 51 I IPC for attempted rape.

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In thr: present case, PW. 1 specihcally narrated that the appellant removed his clothes and tried to insert his

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r {2004) 3 scc 602

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2 1976 LawSrrit lBom) 22

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penis in the area^{where the victim girl passesurrne} The appellant also^{kept his penis on her lips'}

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PW.4 - the^{Doctordeposed that though no external} injuries were found^{on the body of the victim, however'on} examination of^{her private parts, external genetalia} conjested and^{er5''thematous(reddish)hymen was found} ruptured, which^{can only be found incases'where} attempt had been^{made to rapea victim'}

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1 1. Section 3(d)^{of the POCSOAct describeswhat a} sexual assault is.^{Any person, who applies his mouthto} the penis,^{vagina, anus, urethra of the child or makesthe} child to do so to^such Person^{orany other Person,} commits^{penetrative sexual assault'} According to^Section 5(m) of the^{POCSO Act, whoever} commits Penetrative sexual assault^{on a child below} twelve years is^said to commit^{aggravated penetrativesexualassault'} The punishment^{for aggravatedpenetrative sexualassault} is under Section 6^{of the POCSOAct'Prior to the} amendment in^{the year 2019, the minimumimprisonment} that was^{prescribedis ten (1O) years'}

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Keeping in view the evidence of the Doctor, who stated that there was an attempt to commit rape on the victim, horverrer aggravated penetrative sexual assault is made out irs mentioned under Section 3(d) of the pOCSO Act. Accordingly, the conviction has to sustain. The argument of Learned Legal Aid Counsel that there was an attempt to rape and conviction has to be recorded under Section 376 and 511 IPC or under Section 1g of the POCSO Act, cannot be accepted.

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Learneci Legal Aid Counsel submits that the appellant/ arccused has to look after the family members, who are depcndent on him.

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Hencer, this Court, in the present facts and circumstan,:es of a case, deems it appropriate to sentence the appellant/accused to the rninimum punishment prescribed under Section 6 ofthe pOCSO Act.

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