THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.177 of 2007 17-07-2014 BETWEEN:
Gummadi Emmanuel Raju …..Appellant/Accused AND State of A.P., Rep. by the Public Prosecutor, High Court of Judicature at Hyderabad For the State of Telangana and the State of A.P.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.177 of 2007 JUDGMENT:
The Criminal Appeal is preferred by the appellant/accused against the Judgment dated 25.01.2007 passed in S.C.No.482 of 2006, by the Court of the V Metropolitan Sessions Judge, Mahila Court, Hyderabad, whereby the learned Judge convicted the appellant/accused for the offence under Sections 417 IPC and 376 IPC and accordingly sentenced him to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- (Rupees five thousand only), in default, to suffer simple imprisonment for a period of six months for the offence under Section 376 IPC; and to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default, to suffer simple imprisonment for a period of one month for the offence under Section 417 IPC.
The case of the prosecution is as follows:
That P.W.2 had sexual relationship with the appellant herein on the promise made by him that he would marry her. The appellant/accused is working in Tata Tele Services and P.W.2 is working as a staff nurse at Saint Theresa Hospital, Hyderabad. When the appellant visited the hospital, they developed intimacy and on promise made by the appellant/accused, she consented for sexual relationship and thereafter she became pregnant. She informed the same to the appellant/accused and then appellant/accused convinced her by saying that his father is a heart patient and if he knows about their affair, he would die. The appellant/accused further advised her to undergo abortion and as such she was aborted. Later, the appellant/accused refused to marry her. Hence, the victim, P.W.2 lodged a complaint before the police. On the basis of the complaint lodged by P.W.2, a case was registered against the appellant/accused for the offences under Sections 417 IPC and 376 IPC. Charge sheet was filed after completion of the investigation.
To substantiate the case of the prosecution, during the course of trial, P.Ws.1 to 10 were examined and Exs.P.1 to P.4 were marked.
On behalf of the accused, no oral or documentary evidence was adduced.
P.W.2 is the de facto complainant and the victim girl. She deposed that the accused is known to her since her childhood as he was a member the Church. While she was working in St. Theresa’s Hospital, the accused used to go to her and later made a proposal of marriage. She also agreed for the said proposal, started loving him and they were moving together. They also had sexual relationship with each other. She got pregnancy and on the advice of the appellant/accused, she underwent abortion. After abortion, the accused had been postponing the marriage and later the appellant/accused informed her that his parents are not willing for their marriage and as such he refused to marry her. P.W.1 is the Doctor who examined the appellant/accused for potency certification and on examination, he opined that there is nothing to suggest that appellant/accused is not capable of performing the sexual act. Ex.P.1 is the Potency Certificate. P.W.3 is the Lab Technician at St. Theresa Hospital, who deposed that she knows P.W.2, the victim girl and the appellant/accused, as the appellant/accused used to come to the Hospital for P.W.2. When P.W.2 was not eating properly, she enquired P.W.2 and that P.W.2 informed her that the appellant/accused refused to marry her. She also came to know through one of her friends that P.W.2 underwent an abortion as the accused refused to marry P.W.2.
P.W.4 and P.W.6, who also worked as Staff Nurses in Saint Theresa Hospital, also deposed on the same lines of P.W.3. P.W.5, who is the uncle of P.W.2, deposed that he was informed the love affair of the P.W.2 with the appellant/accused and was also informed that the appellant/accused resiled from his promise to marry P.W.2 and that P.W.2 expressed her agony before him. He advised to raise the issue before elders and on one day the discussions were held and accused came there, but P.W.5 did not participate in that discussions. P.W.7 is the Doctor, who conducted abortion, after taking consent from the patient and her husband as P.W.2 informed him that she was married. P.W.8, who is the President of All India Federation of Special Guards of Backward Minorities Association, deposed that through P.W.5 he came to know P.W.2 as her case was preferred to their Association. He arranged a meeting at Hyderabad and P.W.2 and her relatives came there to discuss about her case and that the victim girl reported that the appellant/accused sexually exploited her and refused to marry her, that she also got her pregnancy aborted and that she sought for Justice. He further deposed that they all went to the Police Station and reported the matter. P.W.9 is the Sub-Inspector of Police, who received report from P.W.2, based on which he registered a case against the appellant/accused for the offences under Sections 417 and 376 IPC and issued FIR. P.W.10 is the then Inspector of Police, who conducted investigation and filed charge sheet.
On appreciation of the above evidence, the trial Court found the appellant/accused guilty for the offences under Sections 417 and 376 IPC, and accordingly convicted and sentenced as stated above. Aggrieved by the same, the appellant/accused has preferred the present Criminal Appeal.
Heard and perused the records.
In a case of this nature, the evidence of prosecutrix, i.e., P.W.2 is most important and needs to be appreciated at first. Whether the said evidence adduced by P.W.2 before the Court inspires the confidence of the Court? According to P.W.2, she developed love affair and also on the promise made by the appellant/accused, she submitted herself for sexual relationship with the appellant/accused. It is also her case that she became pregnant because of the said sexual relationship. On reading the entire evidence of P.W.2, this Court is of the view that she is a consenting party for sexual relationship not only on the basis of the promise, but also has an intention to have sexual relationship with the appellant/accused. To substantiate that she had sexual relationship with the appellant/accused, she ventured to prove that she underwent abortion. But it is unfortunate to note that the victim girl refused to submit herself for medical examination to substantiate that she had sexual intercourse and she had an abortion. In the absence of any medical examination, the prosecution tried to establish the case by way of producing the document Ex.P.3, Consent Form, through P.W.7, the Doctor working in the Hospital where the victim girl was also working. The said document is in the nature of consent given by the patient for abortion. In the said document, i.e. Ex.P.3, Consent Form, the signature of P.W.2 is not found and also in the other column, the consent is given by T.Pushpavathi, for the patient and that the said Pushpavathi was not examined before the Court and that the prosecution has failed to prove the relationship of P.W.2 with T.Pushpavathi. The Doctor, P.W.7 claims that he conducted abortion after taking consent from P.W.2 and her husband.
But he admitted in the cross-examination that there is no stamp of Vijaya Hospital on Ex.P.3. P.W.10, the Investigation Officer admitted in the cross-examination that P.W.2 has refused the medical examination. He further admitted that he has not examined P.W.7 to substantiate the fact that he conducted abortion on the victim girl P.W.2 and also it is the case of the Investigation Officer that he has not collected any document from P.W.7. Hence, this Court of the view that on mere oral allegation without any substantial documentary evidence and without therebeing any medical examination to prove that the prosecutrix had sexual relationship with the appellant/accused, it is highly unsafe to convict the appellant/accused for the offence under Section 376 IPC and 417 IPC. Hence, the conviction and sentence imposed by the Court below against the appellant/accused for the offence under Sections 376 IPC and 417 IPC is liable to be set aside and is accordingly set aside.
In the result, the Judgment of the Court below in convicting and sentencing the appellant/accused for the offence under Sections 376 IPC and 417 IPC is set aside. The bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any, paid by the appellant/accused shall be refunded to him.
The Criminal Appeal is accordingly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 17.07.2014 pln