HON’BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.362 of 2007 Date : 14-07-2014 Between :
Shaik Masthan Valli @ Masthan @ Gunga .. Petitioner and State of A.P., rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent HON’BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.362 of 2007 JUDGMENT :
1. This appeal is preferred by the sole accused challenging the judgment of the Assistant Sessions Judge, Bapatla, Guntur District made in S.C.No.227 of 2006 dated 12.3.2007, whereby the learned Assistant Sessions Judge convicted the appellant for the offence under Section 366-A I.P.C. and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for three months.
2. The brief facts of the case are as follows :
The appellant herein was in love with P.W.1 and used to follow her and expressed his love towards her and induced her to leave from the legal guardianship of her parents and thus she was taken to Hyderabad from Guntur. Subsequently, the same was informed by P.W.1 to her paternal uncle and she was taken from Kamareddy on 02- 02-2006 and subsequently a complaint was lodged on 04-02-2006, since the appellant herein induced P.W.1 to leave from the legal guardianship of her parents.
3. To substantiate the case, the prosecution examined P.Ws.1 to 6 and also marked Exs.P1 to P3 and on behalf of defence, Exs.D1 and D2 were marked and no oral evidence was adduced.
4. The learned trial Judge, after evaluating the evidence of the prosecution, more particularly placing reliance on the evidence of P.W.1, convicted the appellant as stated above.
5. For better understanding, Section 366-A I.P.C. is extracted below :
“366-A Procreation of Minor Girl :-
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.”
6. This Court is of the view that in such cases the evidence of the victim-girl gains more importance. The appreciation of the said evidence itself decide the issue. Hence, the evidence of P.W.1 – victim-girl on material aspects runs as follows :
(i) The accused used to tell me that he was loving me, though I have maintained silence.
(ii) For about six months, he used to follow me and expressed his love.
(iii) Thereafter, on 01-01-2006, the accused gave me greeting of the New Year and presented a pen and his photo.
The accused also gave his telephone number informing me about his going to Hyderabad and asked me to telephone him on 30-01-2006.
(iv) I have telephoned on 30-01-2006, as the accused threatened me that he would die.
(v) The accused asked me on telephone to wait on 31-01-2006 at Guntur Bus Stand of Ponnur. Accordingly, I went to the Bus Stand on 31-01- 2006 at about 7-00 AM. I informed my mother that I was going to the college. As soon as I went to the bus stop, I found the accused at the bus stand and took me to Hyderabad by threatening me that he would die by catching the bus.
7. From the said evidence adduced in the chief-examination, it is clear that the victim-girl – P.W.1 is also a consenting party, but, at the same time, in order to attract the offence under Section 366-A I.P.C., she has deposed that the accused threatened that if she fails to come or accompany him, he would commit suicide. Whereas, in the cross- examination she has admitted the following facts :
(i) I have not stated to the Police that the accused stated to me that if I fail to love him, he would die.
(ii) It is not true to suggest that I have not stated to the Police that the accused stated to me if I fail to telephone to the accused, he would die.
8. As far as the second portion is concerned, the same is contradictory to the version of the Investigating Officer. According to him, the said fact is not stated at the time of examination by the Police Officer.
9. It is evident from the Chief and Cross-examinations that the victim is a consenting party and went along with the appellant herein. Even though it is stated by the Prosecution that she was aged about 16 years at the time of leaving with the appellant herein, nothing is on record which is admissible in nature, except a mark-sheet produced by the victim girl before the Court. The said document is also not corroborated by the Prosecution by examining a competent person i.e., the Head Master or Correspondent of the School concerned. In the absence of specific evidence regarding the age is concerned, she cannot be construed as minor in the present case. Even if it is admitted that she was 16 years old at the time of occurrence, this Court is of the view, in view of the decision rendered by the Apex Court in S. Varadarajan v. State of Madras[1] that even though the age is less than 16 years, if the evidence adduced by the victim girl eloquently speaks that she is a consenting party, in such a case, the offence under Section 366-A I.P.C. is not attracted.
10. Hence, this Court is of the considered view that the victim-girl is a consenting party and the conviction and sentence imposed by the learned Assistant Sessions Judge in S.C. No.227 of 2006, dated 12- 03-2007 are liable to be set aside.
11. Accordingly, the Appeal is allowed and the accused is acquitted of the offences. Consequently, the miscellaneous petitions pending, if any, shall stand closed.
RAJA ELANGO, J.
14th July, 2014 skmr [1] AIR 1965 SC 942