Mohd. Muneeruddin vs State Of Telangana

This appeal is directed against the judgment of the learned I-Additional Metropolitan Sessions Judge-cum-Special Judge for Trial of Cases under

Protection of Children from Sexual Offences Act, 2012, Hyderabad, in S.C.PCS.No.89 of 2017, dated 23.06.2020, whereby the appellant/accused

was found guilty of the offences punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 377 of I.P.C.

and accordingly convicted and sentenced to undergo rigorous imprisonment for a period of Ten years and to pay a fine of Rs.2,000/- in default, to

suffer simple imprisonment for a period of six months for the offence punishable under Section 6 of the Protection of Children from Sexual Offences

Act, 2012 (for short “the POCSO Actâ€) and also sentenced to undergo rigorous imprisonment for a period of Ten years and to pay a fine of

Rs.2,000/- in default, to suffer simple imprisonment for a period of six months for the offence punishable under Section 377 of I.P.C. However, the

appellant/accused was found not guilty for the offence punishable under Section 506 of I.P.C. and accordingly he was acquitted for the said offence.

The case of the prosecution, in brief, is that P.W.1 lodged a complaint with the police stating that his son Master Shaik Tabrez (P.W.2), aged about 12

years, studying in IV Class in Shah’s Memorial School, Najam Nagar, Kishanbagh, Hyderabad, has complained him on 10.11.2015 that he is

suffering with pain in anus and on enquiry, he revealed that on 09.11.2015 at about 12.00 hours his Arabic Teacher Muneer (Accused) asked him to

come to his house for getting Arabic books during school timings and after going to his home, he removed his clothes by threatening and started

touching his private parts and also started doing sex with him, on that P.W.2 started shouting and on hearing the hues and cries of P.W.2, the accused

told him to wear his clothes and thereafter dropped him at School. It is also stated in the complaint that the school management has also revealed that

previously the accused had done this type of offence several times with others. Basing on the said complaint (Ex.P1), P.W.11-Sub-Inspector of

Police, registered a case in Crime No.295 of 2015 for the offences punishable under Section 377 of I.P.C. and Sections 3 and 4 of the Protection of

Children from Sexual Offences Act, 2012 and issued Ex.P7-F.I.R. During the course of investigation, P.W.11 examined P.Ws.1 and 2 and recorded

their statements and sent P.W.2 for medical examination to Osmania Hospital, Hyderabad. Thereafter, P.W.14-the Inspector of Police took up

investigation on 11.11.2015; visited the house of P.W.2; re-examined and recorded his statement; visited the scene of offence, conducted scene

observation panchanama in the presence of P.W.8 and one Shaik Isaq (L.W.11) and prepared rough sketch of the scene of offence. On 12.11.2015,

P.W.14 visited Shah Memorial School, situated at Nazam Nagar and recorded the statement of P.W.5, who is the Teacher in the same school and

who noticed the absence of P.W.2 in the class while she was taking class; thereafter P.W.14 observed the CCTV recorded footage inside the room

of School Correspondent and collected the same under a cover of panchanama in the presence of P.W.9 and one Aqeel Ahmed (L.W.13) and also

examined P.W.6, who assisted him in arranging the CCTV footage of the school premises wherein he noticed and identified that P.W.2 has been

taken by the accused. On 12.11.2015, P.W.14 arrested the accused and recorded his confessional statement in the presence of P.W.10 and one

Mohd. Aziz Khan (L.W.14). After completion of investigation and collecting all the material papers, P.W.14 filed the charge sheet, which was taken

cognizance as S.C. PCS No.89 of 2017.

On appearance of the accused, charges under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Sections 377 and 506 of

I.P.C. were framed, read over and explained to the accused. The plea of the accused is one of total denial.

To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P9 and M.O.1. After closure of evidence, the accused

was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution

witnesses, to which he denied. No oral or documentary evidence was adduced on behalf of the accused.

After considering the oral and documentary evidence on record, the learned trial Judge found the accused guilty of the offences with which he was

charged and accordingly convicted and sentenced him as stated supra. Challenging the same, the present appeal is filed.

Learned Counsel for the appellant/accused would submit that the accused is innocent of the offence and he has not committed any offence as alleged

and that there are disputes between P.W.1 and the accused with regard to payment of amount for a plot and to cover up the same, this false case has

been foisted against the accused. She further submits that there is no cogent age proof of the victim boy and since no proof is filed with regard to the

date of birth of the victim boy, Ex.P2-bonafide certificate cannot be treated as a valid proof. She also submits that P.W.2 did not disclose the incident

to anyone at school soon after the incident. She further submits that from the evidence of P.Ws.3, 5 and 7, it is clear that the timings of the school and

Arabic classes are different and that in the cross-examination P.W.7 stated that the victim boy goes home alone, whereas P.W.3 says that she used to

pick up the boy from the school. She further submits that the evidence of P.Ws.2, 3 and 4 is contradicting with each other and that it is not clear

whether the incident was narrated at school or at home or on the way to the home by the victim boy to his mother (P.W.3) and that the contents of

the complaint are contradicting with the version of the witnesses. She further submits that the prosecution failed to adduce any medical evidence in

support of its case. The evidence given by P.W.2 in the Court under Section 164 Cr.P.C. and the statement of P.W.2 recorded by the police under

Section 161 Cr.P.C. were not similar. She also submits that in 161 Cr.P.C. statement, P.W.2 said that “accused forcefully removed his clothesâ€

but in the 164 Cr.P.C. statement he said that “victim removed his clothes by his own decision†and that in the F.I.R. it was stated that the incident

has occurred at 12.00 P.M., whereas in 161 Cr.P.C. statement, victim has stated that the incident has occurred at 2.00 P.M. and as such there is lot

of difference in the timing of the incident, which is fatal to the case of prosecution. She further submits that when the aforesaid two statements were

examined thoroughly, certainly a doubt would arise as to what kind of sexual activity was actually committed by the accused. As per Section 377 of

I.P.C., it is unnatural offence, which is different from the usual sexual offence under Section 376 of I.P.C., whereas the Protection of Children from

Sexual offence Act does not specifically deal with unnatural offences and, therefore, when unnatural offence is not covered by the Protection of

Children from Sexual offence Act, punishing the accused under Section 6 of the Protection of Children from Sexual offence Act is not proper. In

support of her contention, she relied upon the judgments of the Apex Court Rameshwar v. The State of Rajasthan 1952 SCR 377 and The State Govt.

NCT of Delhi v. Kursheed Crl.A.No.510 of 2018, Delhi High Court.

On the other hand, the learned Assistant Public Prosecutor appearing for the respondent/complainant submitted that there is no substance in the

defence of the accused. There is ample evidence of the victim boy (P.W.2), regarding the act done by the accused and the said evidence is

corroborated by the evidence of the doctor (P.W.12), P.W.4, who is the friend of the victim boy and P.Ws.5 and 6, who are the Teachers of the

victim boy. According to the learned Assistant Public Prosecutor, the prosecution has proved the offences against the accused beyond all reasonable

doubt. He submitted that the inconsistencies pointed out by the learned Counsel for the accused are insignificant and they are not sufficient to reject

the direct evidence of the victim boy, his friend and his Teacher and the medical evidence coupled with the CCTV footage. Therefore, he submitted

that the conviction and sentence recorded against the accused is proper and that there is no merit in the appeal and prayed to dismiss the Criminal

Appeal.

I have carefully considered the submissions made by the learned Counsel for the accused and the learned Assistant Public Prosecutor.

Now, the question that arises for consideration is “whether the impugned conviction and sentence imposed against the appellant/accused calls for

interference by this Court or not?

P.Ws.1 and 3 are the parents of P.W.2. P.W.2 is the victim boy. P.W.4 is the classmate of P.W.2. P.Ws.5 and 6 are the Teachers of P.W.2. P.W.7

is the Head Mistress, who issued Bonafide and Conduct Certificate of P.W.2. P.W.8 is the panch witness for scene of offence. P.W.9 is the panch

witness for seizure of CCTV footage. P.W.10 is the panch witness for confession-cum-seizure panchanama. P.Ws.11, 14 and 15 are the Investigating

Officers and P.Ws.12 and 13 are the doctors.

With regard to the offences under Section 377 of I.P.C. and Section 6 of the POCSO Act alleged against the accused, it is necessary to consider the

age of the victim boy on the date of incident. The alleged incident took place on 09.11.2015. The evidence of the victim boy (P.W.2) shows that he is

studying 4th standard. The evidence of P.W.7 shows that she issued the Bonafide and conduct certificate of P.W.2, which was marked as Ex.P2. As

per the said certificate, the date of Birth of the victim boy is 30.09.2002. Considering the said birth date and the date of incident i.e., 09.11.2015, it can

be said that the age of the victim boy was 13 years and one month. Similarly, the evidence of P.W.1, who is the father of the victim boy, also shows

that the date of birth of the victim boy is 30.09.2002. The accused has not seriously disputed the fact that the age of the victim boy was not 13 years

at the time of incident. Thus, on the basis of above evidence, I hold that the prosecution has proved that the age of the victim boy was 13 years as on

the date of incident and as such as the victim boy was below eighteen years of age, he was a child within the meaning of Section 2 (d) of the POCSO

Act.

With regard to the unnatural offence alleged against the accused under Section 377 of I.P.C. and aggravated penetrative sexual assault under Section

6 of the POCSO Act, the prosecution has mainly relied upon the evidence of P.Ws.1 to 6. As regards the evidence of the victim boy (P.W.2) is

concerned, it has come in his evidence that on the date of incident he went to school at around 9.00 A.M., and during lunch time while he was

studying, accused called him to office room and from there he took him on his motorcycle to his house on the pretext of collecting books; that the

accused took him to the bed-room, talked to him for five minutes and thereafter the accused removed his clothes and also the clothes of P.W.2 and

then the accused asked P.W.2 to put his penis in his mouth and thereafter, the accused committed penetrative sexual assault on P.W.2 from his back

and when P.W.2 raised cries due to pain, the accused made him to wear his clothes and took him to the school and left him there. P.W.2 further

deposed that when he was crying, his friends P.W.4 and another asked him as to why he was crying and on that he disclosed the entire incident; that

after school hours, P.W.2 informed the same to his mother and thereafter, they came to home and informed the same to his father and that his father

lodged the complaint and the police sent him to hospital for medical examination. In the cross-examination, P,W.2 denied a suggestion that his father

has to give some amount relating to a plot to the accused and that in order to avoid the same, a false case was foisted against the accused. Thus,

nothing is elicited in favour of the accused in the cross-examination of the victim boy. Therefore, there is no reason to disbelieve the evidence of the

victim boy.

The evidence of P.W.4, who is a friend of the victim boy, is that on the date of incident during lunch time around 12.30 noon while he was going for

hand wash, P.W.2 was standing outside the class and on enquiry he told him that he was going along with the accused to get some books from the

house of accused; that after lunch, 6th period resumed and at that time his teacher asked about P.W.2 as his bag was there in the class room, he

informed her that P.W.2 went along with the accused for getting books. P.W.4 further deposed that P.W.2 came back to school at the end of 7th

period and he was weeping and on his enquiry, P.W.2 disclosed that the accused took him to his house, removed his clothes and also the clothes of the

accused and slept on him. In the cross-examination, he denied the suggestion that P.W.2 did not disclose anything to him against the accused and he

and P.W.2 are not friends and that he is deposing falsehood at the instance of police. Thus, nothing is found in favour of the accused in the cross-

examination of P.W.4. Therefore, there is no reason to disbelieve the evidence of P.W.4, to whom the victim boy had disclosed the incident

immediately after occurrence of the incident.

The evidence of P.W.5, who is the class teacher of P.W.2, disclosed that on 09.11.2015, when she was taking class, she noticed one school bag in the

chair and when she enquired about the said bag, the students of the class informed her that the bag belongs to P.W.2 and further when she asked as

to where P.W.2 was, the students replied that P.W.2 went along with the accused to bring the books and later, she came to know that the accused

has committed sexual assault on P.W.2.

The evidence of P.W.6, who is also one of the teachers in the school of P.W.2, discloses that on 12.11.2015, the Inspector of Police, Bahadurpura,

Police Station came to the school and asked him to show the CCTV footages of their school fixed in the ground floor and on the first floor for the date

09.11.2015 from 10.00 A.M. to 4.00 P.M., accordingly, he checked the CCTV footages and noticed that the accused was taking P.W.2, along with

him, and again the accused returning to the school; that he has also noticed in the CCTV footage of the 1st floor that P.W.2 was also coming into the

School. P.W.6 further deposed that he noticed in the CCTV footage that the victim boy was going out of the school at 12.54 P.M. on 09.11.2015 and

again he is returning to the class room in the afternoon at 2.36 P.M. and the accused returning to the school at 2.40 P.M.

From the evidence of the victim boy (P.W.2), it is clear that on the date of incident the accused had taken him to his house and there the accused,

after removing his clothes and the clothes of the victim boy, committed penetrative sexual assault on P.W.2 from his back. The evidence of the victim

boy is very well corroborated by the evidence of P.W.4, to whom the victim boy disclosed the incident after the incident took place. Similarly, the

parents of the victim boy (P.Ws.1 and 3) have corroborated the evidence of the victim boy regarding the act done by the accused. It was quite natural

for the victim boy to disclose the incident to his parents.

Admittedly, P.Ws.1 and 3, are parents of the victim boy and their evidence as regards the incident is quite natural and cogent. Therefore, the

submission of the learned Counsel for the accused that their evidence cannot be believed simply because they are blood relatives of the victim boy

cannot be accepted.

The contention of the learned Counsel for the appellant/ accused is that there are contradictions and additions in the statements of the victim boy. As

seen from the record, the additions, if any, in the statement of the victim boy, by no stretch of imagination, can be described as improvements, which

shake his credibility and his statement is doubtful. The additions are mere elaborations which the witness narrated before the Court and were omitted

in his narration before the Magistrate or before the Police Officer, while recording his statements under Sections 164 and 161 of Cr.P.C. The

statement of victim boy recorded before the Court, wherein it is observed that his examination-in-chief was consistent with his version before the

Magistrate under Section 164 Cr.P.C. However, P.W.2 has categorically denied the suggestion that his father has to give some amount to the accused

and that in order to avoid the payment of the amount relating to a plot, the present false case has been foisted against the accused.

Further contention of the learned Counsel for the appellant/ accused is that there is no medical evidence to support the version of P.W.2. Admittedly,

as per Ex.P8-injury certificate, there were no injuries found on the body parts of the victim boy. It is clear from the evidence of P.W.2/victim boy that

the accused removed his clothes and also the clothes of the victim boy and committed penetrative sexual assault from his back and when the victim

boy raised hue and cry due to pain, the accused left him. As such, relying on the judgment of the Apex Court in Narayanamma v. State of Karnataka

(1994) 5 SCC 728, the trial Court has rightly held that mere absence of external injuries on the private parts of the victim boy does not negate the

version of the victim boy.

For all the reasons discussed above, on the basis of evidence of P.Ws.1 to 6 coupled with CCTV footages, this Court is of the view that the

prosecution has proved the offences under Section 377 of I.P.C. and Section 6 of POCSO Act, beyond all reasonable doubt. However, considering

the punishment provided for both these offences and the fact that the minimum punishment provided for the offence under Section 6 of the POCSO

Act and Section 377 of IPC is 10 years, the trial Court has rightly imposed sentence on the accused, but however, the sentence imposed on both the

counts shall run concurrently. I see no reason or justification to interfere with the findings of the trial Court. Thus, the appeal is liable to be dismissed.

Accordingly, the Criminal Appeal is dismissed, confirming the conviction and sentence imposed against the appellant/accused by the trial Court, but

however, the sentence imposed on both the counts shall run concurrently.