THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1332 of 2006 15-12-2014 BETWEEN:
Tilak Bagati @ Bashu Tilak AND …..Appellant State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad …..Respondent THIS COURT MADE THE FOLLOWING ORDER:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1332 of 2006 JUDGMENT:
This Criminal Appeal is filed by sole accused challenging the judgment dated 13.09.2006 passed by IV Additional District & Sessions Judge (Fast Track Court), Ranga Reddy District in S.C.No.1 of 2005 whereby the learned Sessions Judge found the appellant guilty for the offence under Section 366-A IPC and sentenced him to undergo R.I. for five years and to pay a fine of Rs.1,000/-, in default, to suffer, S.I. for three months.
The brief facts of the case of the prosecution are as follows:
The de facto complainant-P.W.1 was working as watchman at Gachibouli and the victim-P.W.3 is his daughter aged about 17 years and studying 9th class. The accused was also working as watchman at Telecomnagar and well acquainted with the family of P.W.1 and he used to follow the victim on the way to school and house and expressed his love towards her, but she refused his love. The accused with a view to kidnap P.W.3, on 31.8.2004 at about 9.30 a.m. while the victim-P.W.3 was proceeding to school, he forcibly took her onto an auto by throwing school bag into bushes beside the way took her to Gujarath and confined her and forced her to marry him. But the victim-P.W.3 refused the proposal of the accused as the accused was already married and she managed the accused to bring her back to Hyderabad by saying that she would convince her parents for the marriage and that on 2.10.2004 both the victim and accused reached Hyderabad and the accused left her at Telecomnagar and proceeded to his house and that on the same day at about 1.00 p.m. the accused was arrested upon the complaint given by P.W.1 under Ex.P.1. After completion of investigation, police laid the charge sheet against the accused for the alleged offence.
In order to bring home the guilt of the accused, prosecution examined P.Ws.1 to 5 and marked Exs.P.1 to P.5 and exhibited M.O.1-knife. On behalf of defence, no oral documentary evidence was adduced.
After evaluating the entire evidence brought on record, the trial Court convicted and sentenced the appellant as aforementioned.
Heard the learned counsel for the appellant and learned Additional Public Prosecutor and perused the material brought on record.
P.W.1 is the father of the victim girl who lodged Ex.P.1 complaint,
P.W.2 is the Head Mistress, who issued bona fide certificate to the effect that the victim girl is aged about 17 years and she stated the date of birth as 5.12.1988, which is marked as Ex.P.2. P.W.3 is the victim girl and she stated before the Court that on 31.8.2004 while she was proceeding to school, the accused came to her, threw her school bag and took her in an auto to the railway station. When she tried to raise cries, the accused threatened her by pointing with a knife and took her in an auto to Nampally Railway Station and from there, she was taken to Gujarath State by train and that she was confined in a room for about one month. Further she deposed that the accused compelled her to marry him and on that, she requested him to take her to Hyderabad and that she would convince her parents and thereafter marry him. Then the accused took her back to Hyderabad and subsequently, police arrested him. She also identified one knife that was used by the accused to threaten her. P.W.4 is the panch witness for the confession of accused and recovery of knife-M.O.1. P.W.5 is the investigating officer, who deposed regarding the investigation conducted in the case.
The point for consideration is whether the evidence of P.W.1-victim girl inspires the confidence of the Court to base conviction.
P.W.3 deposed before the Court that she was with the accused nearly for a period of one month in Gujarath State and that she was confined in a room by the accused. In the cross-examination she admitted that during her stay in Gujarath and also during her travel in the train to Gujarath she could see number of police personnel and public. She further admitted that in the Railway Station at Nampally the accused and herself went to the Ticket counter and purchased the tickets to go to Gujarath. But she has not taken any steps to inform that she was confined by the accused either to the police or to the public those who were available nearby her. That apart, the prosecution has to prove the factum that the victim-P.W.3 is a minor. According to the self-serving statement of the witnesses concerned and also the evidence of P.W.1, the learned trial judge is of the view that P.W.3 is aged about 17 years. This Court is of the view that mere bona fide certificate issued by P.W.2 alone is not sufficient to decide whether the victim is minor or not. Further, it is evident from the cross-examination of P.W.1 that P.W.3 studied in various schools in Nepal, Bombay and also in Hyderabad. According to P.W.1, the relevant certificates obtained from the hospital is not produced before the Court since he lost the said certificates. When such is the case, it is the duty of the investigating officer to get the age of the victim determined by way of conducting medical examination. But in the present case, no such medical examination was conducted by the investigating officer. In view of the same, it can be held that the prosecution miserably failed to establish the age of the victim girl. For the reasons stated above, the conviction and sentence imposed by the trial Court is not sustainable under law and is liable to be set aside.
In the result, the Criminal Appeal is allowed. The impugned judgment is set aside and the conviction and sentence imposed on the appellant- accused for the offence under Section 366-A IPC is hereby set aside and he is found not guilty of the offence and acquitted of the said charge. The fine amount, if any, paid by him shall be returned to him.
Miscellaneous Petitions, if any, pending shall stand closed.
RAJA ELANGO,J 15.12.2014 Tsr