HON'BLE SRI JUSTICE K.SURENDER
Criminal Appeal No.1310 of 2009
1.
The appellant/A1 was convicted for the offences under Sections 366 and 376 of IPC and sentenced to undergo rigorous imprisonment for a period of five years under both counts, vide judgment in S.C.No.428 of 2008 dated 01.09.2009 passed by the IV Additional Metropolitan Sessions Judge at Hyderabad. Aggrieved by the same, present appeal is filed.
2. The case of the prosecution is that P.W.2 is the victim girl. The appellant was following P.W.2 while she was going to school. On 11.12.2006 at 9.00 p.m, the appellant took P.W.2 in an auto to temple. There the acquitted appellants A2 and A3 were present and the marriage of P.W.2 and the appellant was performed on the same day in the said temple. Thereafter, they lived together in the house and lead marital life for a period of two months. However the appellant and four other accused started demanding dowry from P.W.2's parents. It is further alleged that unless an amount of Rs.6.00 lakhs 2 was given, A1 would not continue the marital life with P.W.2. It is further the case that the date of birth of P.W.2 is 04.02.1996. Ex.P2 is the proof of age which is the birth certificate issued by Thakshashila Primary School. P.W.2 further stated that their marriage was also performed on 21.03.2009, five days prior to deposition before the Court. They were living together and the said marriage was performed at the behest of her parents and also other elders. However, P.W.2 was not willing for the said marriage.
3. P.W.1 is the mother, who turned hostile to the prosecution case and denied any criminal acts of the appellant and others. P.W.3 is the sister of P.W.2-victim girl, who turned hostile to the prosecution case. P.W.4 is the brother of P.W.2 who also turned hostile to the prosecution case, P.Ws.5 and 6 are independent witnesses, who also turned hostile to the prosecution case.
4. Except the evidence of P.W.2, there is no other evidence to suggest any criminal acts were done by the appellant and others. The main reason for recording the conviction is the 3 date of birth certificate provided under Ex.P2. The said certificate was issued by the School where P.W.2 was studying. According to the said certificate, the date of birth of P.W.2 was shown as 04.02.1996.
5. It is the evidence of P.W.2 that after marriage, she stayed with the appellant as his wife. Again, during the course of trial also, the elders from both sides performed the marriage of P.W.2 with the appellant. However, P.W.2 having entered into witness box stated that she was living with the appellant but she was not willing to continue with the marriage.
6. P.W.2 was in fact living with the appellant even prior to the complaint and also during the course of trial. The date of birth provided by the prosecution cannot be relied upon since it is given by the school on the basis of the declaration of the parents who turned hostile to prosecution case and did not state about the age of PW2. Prosecution has not filed any hospital record or municipal record to show the exact date of birth of P.W.2. P.W.2 was also not sent to any Doctor for conducting ossification test. In the said circumstances, Ex.P2 4 cannot be relied upon to conclude that the age of P.W.2 was less than 18 years. Benefit of doubt is extended to the appellant and the conviction recorded by the trial Court is liable to be set aside and accordingly set aside.
7. In the result, the judgment of the trial Court in SC No.428 of 2008 dated 01.09.2009 is set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand cancelled.
8. Accordingly, the Criminal Appeal is allowed.
__________________ K.SURENDER, J Date: 23.08.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1310 OF 2009 Date: 23.08.2022 kvs