HON'BLE SRI JUSTICE M. LAXMAN
AND
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.556 of 2013
JUDGMENT : (Per G.Anupama Chakravarthy, J)
This appeal is arising out of the judgment dated 02.07.2013
in SC/ST Sessions Case No.6 of 2012, on the file of Special Judge
for trial of cases under SCs. and STs. (POA) Act-cum-VIII
Additional District Judge, Nizamabad, whereby, the appellant was
convicted and sentenced to undergo rigorous imprisonment for six
months and to pay a fine of Rs.100/- for the offence under Section
417 of IPC. He was also sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.100/- for the
offence under Section 506 of IPC. He was further sentenced to
undergo rigorous imprisonment for life and to pay a fine of
Rs.100/- for the offence under Section 3(2)(v) of SCs & STs
(POA) Act. No separate punishment was awarded for the offence
punishable under Section 376 of IPC though he was convicted for
the said offence.
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2. The case of the prosecution in nutshell is that the accused
was harassing the victim/PW-1 stating that he fell in love with her
and intends to marry her. On 31.03.2011 at about 10.30 p.m., the
accused went to the house of PW-1, called her to open the door,
entered the house, dragged PW-1 into the room and forcibly
committed rape on her. The accused further threatened to kill
PW-1, if she discloses the incident to anybody and that he will
marry her with the consent of her parents and he remained with
PW-1 on the said night in the same house. At about 5.00 a.m. on
the next day, when the mother of the victim entered into the room
and found them, the accused escaped from the place.
3. Basing on the complaint/Ex.P-1 of the victim, a case was
registered against the accused vide Crime No.49 of 2011 on the file
of Dharpally police Station and FIRs. were sent to all the
concerned.
4. During the course of investigation, the investigating officer
has examined all the witnesses, recorded their statements,
examined the scene of offence, collected the clothes of the victim,
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effected the arrest of accused. Pursuant to the confession of the
accused, seized his clothes, sent the victim-girl for medical
examination and the accused for potency test and also obtained the
caste certificate of PW-1. Finally, after receiving the medical
reports, laid charge sheet against the accused.
5. PWs.1 to 12 were examined on behalf of prosecution and
Exs.P-1 to P-12 were marked. M.Os.1 to 3 were also marked. On
behalf of defence, Ex.D-1 was marked.
6. The accused denied the incriminating evidence appearing
against him from the evidence of prosecution witnesses and
reported no defence evidence.
7. After considering the entire oral and documentary evidence
on record, the appellant/accused was convicted and sentenced for
imprisonments as aforesaid.
8. Heard learned counsel for the appellant and the learned
Assistant Public Prosecutor appearing for the State.
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9. It is the contention of the learned counsel for the appellant
that the trial Court erred in accepting the age of the victim girl as
17 years and that the sexual intercourse between the victim and the
accused was with consent and it does not attract the offence
punishable under Section 376 of IPC. Further, the prosecution has
miserably failed to bring home the guilt of the accused, for the
offences under Sections 417 and 506 of IPC and as such, the
offence under Section 3(2)(v) of SCs. and STs. (POA) Act is said
to be not proved by the prosecution, and therefore, prayed to set
aside the judgment of the trial Court.
10. On the other hand, the learned Assistant Public Prosecutor
contended that the evidence of the victim girl is trustworthy and
further, the accused had promised to marry the victim but cheated
her, therefore, the offence under Section 417 of IPC is said to be
proved and that the trial Court has rightly convicted the appellant
herein, and therefore, prayed to confirm the judgment of the trial
Court.
11. The point which arose for determination in this appeal is:
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Whether the trial Court is right in convicting the
accused for the charged offences and further, whether
the prosecution has brought home the guilt of the
accused for the said offences ?
12. It is necessary to scrutinize the oral and documentary
evidence to see whether the prosecution has proved the guilt of the
accused beyond reasonable doubt. The cardinal principles of
criminal law are that; (1) Prosecution has to prove the guilt of
accused beyond reasonable doubt for the charged offence; (2) The
accused shall be presumed to be innocent till the charge is proved;
and (3) It is for the prosecution to connect the accused with that of
the crime, in order to prove the charges.
13. On perusal of the record, it is evident that there is no
documentary evidence before the Court to prove that the
victim/PW-1 was aged 17 years, as on the date of the offence. It is
important to note that the offence took place on 31.03.2011. PW-1
testified that on 31.03.2011 at 10.00 p.m., the accused committed
rape on her, at her house and threatened her not to raise any hue
and cry and her mother observed both of them in the said room at
about 5.00 a.m. on 01.04.2011 and when she confronted her, she
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stated that she had acquaintance with the accused for the past two
years and that he committed rape on her. The evidence of PW-1
further discloses that she has no liking to marry the accused and
informed the same to the accused.
14. Ex.P-1 is the report given by PW-1. On perusal of Ex.P-1, it
is evident that PW-1 herself stated that they both are in love and
that the accused came to her house at about 10.00 p.m. on
31.03.2011
, committed rape on her and stayed with PW-1 upto 5.00 a.m. till the next morning and also made false promise to her that he will marry her. Further, when the parents of PW-1 asked him to marry her, the accused refused to marry her and as such, they preferred Ex.P-1/report.
15. The date of offence is very crucial in this case in order to see whether the consent of the victim is necessary or not. In order to attract the offence under Section 375 of IPC, as per the circumstances falling under any of the seven descriptions, the sixth description prescribes that "with or without consent when she is aged under 16 years". After amendment of IPC in the year 2013, 7 ML, J & GAC, J Crl.A.No.556 of 2013 the Sixth description of Section 375 of IPC, the age has been enhanced to "with or without consent when she is under the age of 18 years." Therefore, taking into consideration the date of offence as 31.03.2011 as per the old Act, the Sixth description has to be taken into consideration i.e. "with or without consent, when she is under the age of 16 years", which is the criteria for the offence.
16. As stated supra, there is no documentary evidence before the Court, except the oral evidence of the victim and PW-2, who is the mother of the victim. Both of them in one tone, deposed that the victim was aged 17 years on the date of offence. Furthermore, the evidence of Doctor PW-8 discloses that she conducted test on the victim girl on 31.04.2011 and found that the hymen deflorated and there was no recent sexual intercourse on the victim. She also found that the vitals of the victim are normal and vaginal smears of the victim collected by her were sent to FSL. Ex.P-6/certificate issued by her reveal that victim was aged 17 years. The final opinion/Ex.P-7 issued by her was based on FSL report i.e. Ex.P-8. On perusal of FSL report, it is evident that semen and spermatozoa was not detected on Item Nos.1 and 3. Item No.1 relates to two 8 ML, J & GAC, J Crl.A.No.556 of 2013 glass slides on which, dried smear of the accused and the hair of the victim were collected. Therefore, it can be understood that the medical evidence is not corroborated with the oral evidence of the victim girl, so as to connect the accused with that of the crime. Further, semen and spermatozoa were detected on Item Nos.2, 4 and 5 i.e. whitish turbid liquid, cream colour underwear with dark brown stains and faded maroon colour underwear, which were seized from the victim and accused after lapse of long time of the offence. Admittedly, the victim was examined by the Doctor on 31.04.2011 i.e. one month after the incident.
17. PWs.9, 10 and 11 are the Police officials who have registered the FIR, basing on the complaint of the victim, visited the scene of offence, prepared scene observation panchanama, took photos of the scene of offence, prepared rough sketch, recorded the statements of witnesses and after receiving the medical reports, filed the charge sheet. Their evidence disclose that they seized the underwear of the accused under a panchanama. It is needless to say that the Police have seized the underwear of the accused, which was worn by him on 06.04.2011. There is no evidence on record 9 ML, J & GAC, J Crl.A.No.556 of 2013 that the accused worn the said underwear on the date of incident. Furthermore, it cannot be termed as recovery under Section 27 of the Indian Evidence Act i.e. pursuant to the confession statement of the accused. Though the evidence of PW-7/the medical officer who conducted potency test on the accused and issued Ex.P-5/ certificate discloses that the accused is potent and capable of doing sexual act, that itself will not prove the offence under Section 376 of IPC. Hence, it can be construed that the sexual intercourse between the accused and deceased, took place with the consent of the victim girl/PW-1, and therefore, it does not attract the offence punishable under Section 375 of IPC so as to convict him under Section 376 of IPC.
18. The evidence of P.Ws.1 and 2 clearly disclose that accused and victim had acquaintance with each other for past two years and the place of offence is the house of the victim. At the time of incident, she did not raise any hue and cry and PW-2 and her family members were sleeping next to the door. Their evidence cannot be believed that the accused has committed rape on the victim, as the accused was along with the victim girl from 10 ML, J & GAC, J Crl.A.No.556 of 2013 10:30 p.m. to 5 a.m. in the house of the victim and she specifically lodged the complaint on 31.03.2011 at about 10:30 a.m. but the same was registered at 5:30 p.m. by the Police.
19. It is the duty of the investigating officer to record the evidence of the victim, at the earlier possible time by the Magistrate under Section 164 of Cr.P.C and further, immediately after registering the case, she has to be referred for medical examination. But in the present case, the victim was referred to medical examination on 31.04.2011 for the reasons best known to the prosecution. Therefore, the medical evidence did not corroborate either with the ocular or oral evidence of P.Ws.1 and 2 so as to believe their version. The rest of the witnesses in this case are the panch witnesses i.e. PWs.3 to 6. Their evidence is in no way helpful to connect the crime with the accused.
20. On perusal of the entire evidence of PWs.1 to 3, it is evident that there is no iota of evidence to prove the ingredients of offences under Sections 417 and 506 of IPC. It is established from the evidence of PW-12 that the victim belong to Scheduled Caste, but 11 ML, J & GAC, J Crl.A.No.556 of 2013 the same is in no way helpful to the prosecution, as the prosecution has failed to prove the guilt of accused for the offences punishable under the Indian Penal Code. Therefore, it can be construed that the prosecution has miserably failed to bring home the guilt of accused for the offences punishable under the Indian Penal Code, and consequently, the offence punishable under Section 3(2)(v) of SCs. and STs. (POA) Act stands not proved.
21. In the result, the Criminal Appeal is allowed. The appellant is found not guilty of the offences punishable under Sections 417, 506 and 376 of IPC and under Section 3(2)(v) of SCs. and STs. (POA) Act, and accordingly, the conviction and sentences imposed on the appellant vide Judgment dated 02.07.2013 in SC/ST Sessions Case No.6 of 2012 on the file of Special Judge for trial of cases under SCs. and STs. (POA) Act-cum-VIII Additional District Judge at Nizamabad, is hereby set aside and the appellant is acquitted of the charged offences. The appellant shall be released forthwith, if not required in any other case. His bail bonds shall stand cancelled. The appellant is entitled for refund of fine amount 12 ML, J & GAC, J Crl.A.No.556 of 2013 paid, if any. M.Os.1 to 3 shall be destroyed after appeal time is over.
Pending miscellaneous applications, if any, shall stand closed.
_____________ M. LAXMAN, J _________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 02.02.2023 N.B:
Judgment be forthwith communicated to the jail authorities concerned.
(b/o) ajr