THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1041 of 2007 09-10-2014 BETWEEN:
The State of A.P., rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh …..Appellant AND Dampaboyina Satyanarayana …..Respondent/Accused THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1041 of 2007 JUDGMENT:
This Criminal Appeal is preferred by the State challenging the Judgment dated 13.07.2004 passed in S.C.No.281 of 2001 by the Assistant Sessions Judge, Narsapur, whereby the learned Judge acquitted the accused/respondent for the offences under Sections 376, 417 and 312 IPC.
The case of the prosecution, as recorded by the Court below, is as follows:
That the accused entered into the bed room of the victim girl, P.W.1, in the absence of her mother, when the victim was sleeping and ravished her without her consent and against her will by making false representation that he would marry her and continued his sexual relationship with her, due to which, P.W.1 was conceived, but her pregnancy got aborted by taking her to private hospital by the accused and later he also tied pasuputadu to her neck to make her believe that she is his wife and sexually enjoyed with her, but ultimately, the accused refused to marry, which resulted in giving complaint. Basing on the complaint lodged by P.W.1, police registered case against the accused/respondent for the offences under Sections 376 IPC and 417 IPC, and the matter was investigated. After completion of the investigation, police filed charge sheet.
To prove the case of the prosecution, P.Ws.1 to 16 were examined and Exs.P.1 to P.18 and M.Os.1 to 5 were marked. No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence, the trial Court acquitted the accused for the offences under Sections 376 IPC and 417 IPC, as the prosecution has failed to prove the guilt of the accused. Aggrieved by the same, the State has preferred the present appeal.
Heard and perused the material available on record.
After evaluating the evidence, the Court below while acquitting the accused for the offence under Section 376 IPC, observed as under.
Now the crucial question is whether the consent of P.W.1 to have sexual intercourse by the accused is material or immaterial. It is submitted by the learned Assistant Public Prosecutor that the P.W.1 was under the age of 16 years when the accused started to have sexual intercourse with her and so she was minor. The P.W.1 in her evidence elicited as she was about 16 years and her mother P.W.2 also stated that she was just 15 years. But the P.W.11, the Head Master of Mandal Praja Parishad Elementary School, Nakkavaripalem, in whose school, the P.W.1 studied upto 5th class, made clear that the date of birth of P.W.1 is 15.09.1978 and accordingly, he also issued Ex.P.7 Certificate as per the entry in the admission register. The P.W.1 was also subjected to the examination of professor of Forensic to determine her age and he also issued certificate as under Ex.P.17 and by his certificate, it is revealed that the victim was aged about 18 years by the date of his examination. However, the said professor was not examined before the Court. But the certificate issued by him was elicited through the investigation officer. Further by the certificate issued by P.W.11, it is revealed that the P.W.1 was aged about 21 years by the year 1999. Therefore, it is clear that the P.W.1 was certainly not under the age of 16 years, even after giving the margin of error to the age ascertained by the professor. Therefore, the consent of the P.W.1 given to the accused even if presumed that the accused had sexual intercourse with her is material and therefore, cannot be held that the accused committed the offence of rape under Section 376 IPC.
Insofar as the offence under Section 312 IPC is concerned, the Court below acquitted the accused observing as under.
It is the allegation of the prosecution that the accused took the P.W.1 to a private hospital and got aborted her pregnancy. But the prosecution could not produce any iota of evidence to prove the same. The P.W.16, Investigation Officer, has categorically admitted in cross-examination that one RMP Doctor Prakash Rao was running clinic but without any name to hospital in Seetharampuram Village and he could not find him again during his investigation. But, it was some R.M.P.Doctor who terminated the pregnancy of the P.W.1, but nowhere in the evidence of P.W.1 and P.W.2, it was elicited that the Doctor who terminated the pregnancy was a R.M.P.Doctor. It is simply stated that the P.W.1 was taken to a private hospital by the accused. Further, the Investigation Officer did not produce any other clinching evidence to know actually the doctor left the village. Further, it is already elicited by my discussions in foregoing points that there was no medical evidence to establish the fact that actually the P.W.1 was conceived and her pregnancy has been terminated by any Doctor. The P.W.14, the Medical Officer, who examined P.W.1 did not find any traces of her pregnancy as it is her only evidence that the P.W.1 was accustomed to sexual life. Therefore, the prosecution also failed to prove that the accused was responsible for the miscarriage of P.W.1.
Insofar as the offence under Section 417 IPC is concerned, this Court is of the view that the observations given by the Court below while acquitting the accused for the aforesaid offence, are in accordance with law and needs no interference. It is the allegation of the prosecutrix that the accused had sexual relationship with her after making promise by the accused to marry her. This Court, after perusing the evidence on record, is of the view that it is not evident from the evidence of the prosecutrix whether she had sexual relationship with the accused on the promise made by the accused to marry her or after the sexual relationship, the promise was made by the accused. Further, it is the case of the prosecutrix, P.W.1 that the accused also married her by way of tying ‘tali’ and as such, the question of offence punishable under Section 417 IPC does not arise.
In view of the above discussion, this Court is of the view that the trial Court has appreciated the evidence in proper perspective and the reasoning given above while acquitting the accused for the offences under Sections 376, 417 and 312 IPC in accordance with law. The Judgment of the trial Court does not suffer from any perverse findings and the acquittal recorded by the trial Court needs no interference by this Court.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 09.10.2014 pln