State Of A.P. vs Ponna Murali Babu Murali
2022 Latest Caselaw 9781 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

               CRIMINAL APPEAL No.1276 OF 2009

JUDGMENT:

This Criminal Appeal, under Section 378(1) and (3) of the

Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed

by the State of Andhra Pradesh, represented by Public Prosecutor,

High Court of Andhra Pradesh, against the judgment, dated

01.02.2008, in Sessions Case No.103 of 2006, on the file of the

Court of Additional Assistant Sessions Judge, Tirupati, Chittoor

District (for short, 'the learned Additional Assistant Sessions

Judge'), whereunder the learned Additional Assistant Sessions

Judge by virtue of the said judgment, acquitted the accused for

the charges under Sections 366-A and 376 of the Indian Penal

Code, 1860 (for short, 'the IPC').

2. So, the respondent (accused) herein faced trial before the

Court below for the charges under Sections 366-A and 376 IPC.

3. The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

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4. The Sessions Case No.103 of 2006 on the file of the Court of

Additional Assistant Sessions Judge arose out of PRC No.16 of

2005 on the file of the II Additional Judicial Magistrate of First

Class, Tirupati (for short, 'the learned Magistrate'), which was

committed to the Court of Session and thereupon it was assigned

with S.C. No.103 of 2006 and made over to the learned Additional

Assistant Sessions Judge, Tirupati.

5. The case of the prosecution, in brief, according to the

averments in the charge sheet, filed before the learned Magistrate,

is as follows:

The accused is a resident of Kothapalli, Thimminayanipalli

Panchayat, Tirupati Rural Mandal. LW.4 is the victim girl. She has

studied up to first year Intermediate and discontinued her studies.

Her date of birth was 07.10.1987 i.e., 16 years four months as on

the date of offence. Three months prior to 02.02.2004, the accused

made a phone call to the victim saying that he liked her and asked

to give her willingness to marry him for which she denied because

the character of accused is not good. While so, on 02.02.2004 at

11:30 AM, while she was proceeding towards the house of her

friends Shakila, on the way near a Mosque situated at

Chandrasekhar Reddy Colony, Tirupati, accused waylaid and

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caught hold of her hand and forcibly kidnapped her in an

unknowing car and took her to Leela Mahal Junction. He stopped

the car at Karakambodi road and took one bag from one Siva.

Then, the victim tried to escape from the hands of the accused.

Accused put a kerchief to her nose resulting which she lost her

consciousness. On 03.02.2004, next day morning, she regained

her consciousness at Bikkavolu of East Godavari District. Accused

took her to Ramachandrapuram in an auto rickshaw and took a

rented house in Ghouse House against her will. He printed and

distributed the wedding cards to LWs.5 to 7 and others at

Ramachandrapuram stating that he would marry victim in a

Temple. On 08.02.2004, he took her to Lord Ammavari Temple,

Mandapeta and married her without her willingness and tied tali

around her neck. He brought her back to the rented house at

Ramachandrapuram. Then, he participated in the sexual

intercourse with victim every day without her willingness. Later,

accused telephoned to the de-facto complainant and asked her to

withdraw her criminal complaint given against her and to give a

sum of Rs.2,00,000/- for which she did not agree. On 28.02.2004,

he brought the victim to Tirupati and threatened her to inform the

Police that she took the accused for marrying him. Due to fear, she

gave statement that she fell in love with the accused and he

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married her according to her willingness. The Police took the

victim to SVRR GG Hospital and Maternity Hospital for medical

examination. Later, she was sent to her parents. Victim removed

the tali, tied by her husband, at her house. The learned Magistrate

recorded the statement of the victim where she spoke two

versions. On 10.03.2004 she was re-examined by the Inspector of

Police, Tirupati Urban Circle, where she stated that she was

kidnapped by the accused and she narrated everything. On

written report of LW.1 on 02.02.2004 kidnapping case was

registered by LW.12, ASI. Later, LWs.13 to 15 investigated the

case. They examined other witnesses and examined the scene of

offence. A-2 name was deleted from the charge sheet as none

supported the case against A-2. The Investigating Officer during

investigation subjected the victim to medical examination through

Medical Officers and obtained age determination certificate.

Accused was arrested on 01.03.2004 at Tirupati and sent for

remand. The Police obtained the age certificate from High School

authorities also. Police obtained medical opinion that the victim is

of 16 or 17 years. They also obtained opinion that the victim was

subjected to sexual intercourse. Hence, the charge sheet.

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6. The learned Magistrate, Tirupati took cognizance of the case

under Sections 366-A and 376 IPC and numbered it as PRC No.16

of 2005 and after completing the formalities under Section 207

Cr.P.C, committed the case to the Court of Session and thereafter

it was numbered as S.C. No.103 of 2006 and made over to the

Court of Additional Assistant Sessions Judge.

7. After appearance of the accused before the learned

Additional Assistant Sessions Judge, Tirupati and after following

the procedure under Section 228 Cr.P.C, charges under Sections

366-A and 376 IPC were framed, for which the accused denied the

offences, pleaded not guilty and claimed to be tried.

8. During the course of trial, before the Court below, on behalf

of the prosecution, PWs.1 to 12 were examined and Exs.P-1 to

P-15 were marked.

9. The accused was subjected to 313 Cr.P.C examination after

closure of the prosecution evidence, for which he denied the

incriminating circumstances appearing against him, and reported

that he got defence evidence. On behalf of the defence, DW.1 was

examined and Exs.D-1 to D-7 were marked.

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10. The learned Additional Assistant Sessions Judge, on hearing

both sides and after considering the oral and documentary

evidence on record, found the accused not guilty of the charges

under Sections 366-A and 376 IPC, and acquitted him under

Section 235(1) Cr.P.C.

11. Being aggrieved of the same, the State, represented by the

learned Public Prosecutor filed the Appeal questioning the

judgment of the learned Additional Assistant sessions Judge.

12. Now, in deciding this Criminal Appeal, the point that arises

for consideration is, as to whether the prosecution before the

Court below proved, beyond reasonable doubt, that the accused

kidnapped the victim girl and subjected her to rape reportedly in

the manner as alleged by the prosecution?

13. To bring home the guilt of the accused, the prosecution

examined PWs.1 to 12 and Exs.P-1 to P-15 were marked. On

behalf of the defence, DW.1 was examined and Exs.D-1 to D-7

were marked.

14. PW.1 is the de-facto complainant, who lodged the report

with the Police about missing of the victim girl. She is the mother

of the prosecutrix. Her evidence in substance is that victim is her

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daughter. She was aged about 16 years by the time of offence. On

02.02.2004, the victim at about 11:30 AM went to her friend's

house. She (PW.1) returned from Tiruthanni nearby village as she

gone there to see his father-in-law. She could not notice the victim

in the house. Then she was told by Narendra Reddy (LW.3) that

her daughter was taken away by the accused in a car near Leela

Mahal Junction. Then, they went to the house of the accused and

parents of the accused told that they do not know anything. They

do not find the accused. They searched for their daughter for two

days. On 04.02.2004, she lodged a complaint to the Police. On

28.02.2004, the accused telephoned and demanded to withdraw

the case. Later, the Police informed on 01.03.2004 to her that her

daughter came to the Police Station. Then they went to the Police

Station. Later, the Police referred the victim to the Hospital etc.,

and later she came to know about the kidnap and sexual

intercourse made by the accused against her daughter. Ex.P-1 is

the report lodged by PW.1.

15. The prosecution examined PW.2, whose evidence is that on

02.02.2004 he noticed an Ambassador car in which accused sat

and the victim was on the back seat. The car was proceeding

towards RTC Bus stand. He wanted to intimate to the parents of

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the victim about the episode but nobody was there. At 09:00 PM,

he went to home and when the parents of victim were inquiring

about her, he told them what happened. He was examined by the

Police.

16. PW.3 is no other than the victim, who testified before the

Court below that on 02.02.2004, she started to go to her friends

house at 11:00 AM and when she was near Mosque, accused

pulled her hand, dragged her into car and asked her to marry him,

for which she replied that her parents would not agree for it. Car

started and stopped near Leela Mahal Junction. He collected a bag

from a person. When she tried to get down, accused placed a

kerchief near her nose. She fell unconscious and on the next day

she got consciousness. She found that she was in Rajahmundry in

the house of the friend of the accused. When she cried, accused

threatened that people are there in Bikkavolu village and they will

kill her elder brother. Accused took her to Ramachandrapuram

and kept her in the lodge. Accused asked her to tell the people

that she came on her own accord and accused got married her at a

temple. Accused made a call to her parents and demanded to

withdraw the complaint. After that, accused brought her to

Tirupati and also to an Advocate, who advised that she has to

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state that entire episode took her on her own accord. She was

dropped at Police Station. She told the Police due to fear as

compelled by the accused. Thereafter, she was referred to the

Hospital. Later, she disclosed the facts to the Magistrate truly.

17. Prosecution examined PW.4, who deposed that accused and

PW.3 stayed in the guest house of him for 20 days.

18. Prosecution examined PW.5, who deposed that two years

back accused brought a girl in the night to his house and wanted

to marry her. On suspicion, he asked the accused to go away from

his house.

19. PW.6 in his chief-examination deposed about Ex.P-2 date of

birth certificate of victim, as per her school records.

20. PW.7 deposed about conducting of age determination

certificate and his issuance of Ex.P-3 dental opinion.

21. PW.8 has spoken to the fact that basing on the written

complaint of PW.1 he registered the same as a case in Crime No.23

of 2004 and took up investigation and his examination of the

witnesses.

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22. PW.9 is the Judicial Officer, who recorded the statement of

the victim and he testified that at the request of the Police, he

recorded the statement of the victim under Section 161 Cr.P.C. on

09.03.2004.

23. PW.10 is the Investigation Officer, who has spoken about

registration of the FIR by the SI of Police and his subsequent

investigation.

24. PW.11 is the Medical Officer, who examined the victim and

issued the wound certificate basing on the RFSL report.

25. PW.12 is the successor of PW.10, who verified the

investigation and subsequent part of the investigation was done by

him.

26. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, appearing for the appellant-State,

would contend that the learned Additional Assistant Sessions

Judge erroneously recorded the order of acquittal and the evidence

of victim is fully convincing and her allegations are supported by

Medical Officer and prosecution adduced cogent evidence before

the Court below but the learned Additional Assistant Sessions

Judge, acquitted the accused on the ground that the prosecutrix

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has consented for sexual intercourse and she was a major by then.

He sought to contend further that as the judgment of the learned

Additional Assistant Sessions Judge is erroneous, Appeal is liable

to be allowed.

27. In spite of the opportunity given, no arguments are

advanced on behalf of the respondent/accused.

28. The case of the prosecution is that PW.3-victim was a minor

girl as on the date of offence and that she was aged about 16 years

and the accused kidnapped her and committed rape, which

attracts Sections 366-A and 376 IPC.

29. Admittedly, PW.1, mother of the victim, was not a direct

witness to the occurrence. PW.3 - victim has spoken about the

allegations against the accused in her evidence. PW.2 was

examined by the prosecution to speak to the fact that accused

took away PW.3 in a car. Prosecution further examined PWs.4 and

5 to speak to the fact that accused brought PW.3 to them etc.,

30. As seen from the evidence of PW.3, she has spoken specific

episodes. First is that on 02.02.2004 she was taken away by the

accused with all force. Another episode is that while she regained

consciousness she was at Bikkavolu village near Rajahmundry.

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Another episode is that she was taken to Ramachandrapuram,

where she was kept in lodge. Another episode is that the lodge

owners believing her version, at the instance of the accused,

performed their marriage. Now, this Court has to see whether the

evidence of PW.3 is reliable or not? During cross-examination, she

deposed that while she was near Mosque, on 02.02.2004 at about

11:00 AM, while proceeding to her friend's house, accused pulled

her hand, dragged her into the car, asked her to marry him and

further when the car was stopped at Leela Mahal Junction, a

person handed over the bag to the accused and the accused

placed the kerchief near her nose and she fell unconscious. As

evident from the cross-examination part, she did not cry for any

rescue when the accused dragged her into the car by pulling her

near the Mosque. Before reaching Leela Mahal Junction, she did

not make any attempt to escape from the accused after getting

down from the car. As evident further, she admitted the contents

of her 164 Cr.P.C statement, which was recorded by the

jurisdictional Magistrate, which is to the effect that she and the

accused fell in love with each other, there were exchange of phone

calls and both agreed to enter into marriage and she voluntarily

left along with the accused. So, it is a case where the testimony of

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PW.3 was contradicted with reference to her previous statement in

writing, which was recorded by the learned Magistrate.

31. The line of defence of the accused before the Court below

which was upheld by trial Court was that PW.3 became a major

already and she fell in love with him and she requested him to

marry her and everything was done with the consent of each other.

Under the circumstances, now this Court has to look into whether

the accused was able to probablize a theory that PW.3-victim

accompanied him by way of consent. As evident from the cross-

examination part of PW.3, she never ventured to raise any hue and

cry when she was pulled into the car with all force and further

when one person before at Mahal Junction handed over a bag to

the accused and further when she was taken to Bikkavolu and

when she was lodged in a lodge and further when her marriage

with the accused was performed etc., All these go to show clearly

that PW.3 was a consenting party. The standard of proof with

which the accused had to probablize his defence is preponderance

of the probabilities. The admissions made by PW.3 in her cross-

examination negatived the allegations against the accused. Even

otherwise, PW.2, who claimed to have witnessed when he spotted

PW.3 in the backside of the car, did not speak to the fact that

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when he noticed the victim, she was in unconscious stage etc., On

the other hand, his evidence means that he found the victim in the

backside seat of the car and the car was proceeding towards RTC

bus stand. During cross-examination, he testified that the victim

was sitting on the left side, while the accused was sitting on the

right side in the car. So, it is very clear that the theory of PW.3

that accused applied kerchief on her nose, as such she lost her

consciousness cannot stand to any reason. So, the evidence of

PW.2 further negatives the case of the prosecution that the victim

was taken away by the accused in car with force by making her to

fell unconscious.

32. Having gone through the entire evidence on record,

absolutely, there is nothing to show with convincing evidence that

the accused kidnapped the victim by using force. In the

circumstances, if really, she was kidnapped by the accused, she

would have a chance to raise hue and cry when she was said to be

in the company of the accused for more than three weeks.

33. In my considered view, the prosecution miserably failed to

prove before the Court below that the accused kidnapped the

victim, in the manner as alleged.

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34. Admittedly, while Section 366-A IPC contemplates

punishment for kidnapping a girl under the age of 18 years,

Section 375 clause (6) IPC, which was in force as on the date of

offence, contemplates that a man is said to commit rape if he has

sexual intercourse with a girl of 16 years, where it is done with or

without her consent. So, it goes to show that even if there was

consent of the victim to accompany the accused and for having

sexual intercourse, if the prosecution is able to prove the age of

the victim, in the manner as alleged, it would attract the offences

under Sections 366-A as well as 376 IPC.

35. Now, it is a matter of appreciation to look into as to whether

evidence on record would prove that the victim was under the age

of 16 or 18 years. Coming to the testimony of PW.1, the mother of

the victim, the date of birth of the victim was 07.10.1987 and she

was aged about 16 years by then. PW.3 is the victim. She

disclosed that she was born on 07.10.1987. The date of offence in

this case was on 02.02.2004. So, even on the face of it, the

allegations are that by 06.10.1987, the victim completed the age of

16 years and entered into the age of 17 (running). The prosecution

examined PW.6, who deposed that as per Ex.P-2 date of birth

certificate, relating to PW.3, she was born on 07.10.1987. He

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admitted in cross-examination that as per the information given

by the parents of the student only they made entries with regard

to date of birth. So, Ex.P-2 cannot be taken as a birth certificate,

admittedly.

36. Coming to the evidence of PW.7, the Medical Officer, he

deposed that he examined PW.3 on 02.03.2004 at the request of

the Police clinically and radiologically and he came to the

conclusion that the age of the above girl is 16 to 17 years. Ex.P-3

is the dental opinion. He admitted that it is not mentioned in

Ex.P-3 the date of examination of PW.3. He cannot give accurate

opinion with regard to the age of PW.3. Basing on the evidence of

PW.7, coupled with Ex.P-3, it is clear that PW.3 was not subjected

to ossification test, which was the relevant test to decide the age of

the victim. So, according to the evidence of PW.6, the age of the

victim could be from 16 to 17 years but according to him, Ex.P-3

does not contain anything about the tests which he conducted.

Now, it is a matter of appreciation to decide as to whether it is safe

to place reliance on the oral testimony of PWs.1, 2, 5 and 6

coupled with Exs.P-2 and P-3. It is to be noticed that the victim in

her 164 Cr.P.C. statement negatived the case of the prosecution

before the jurisdictional Magistrate. She clearly admitted about the

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contents of her statement before the jurisdictional Magistrate.

PW.4, during cross-examination denied that he stated before

Police as in Ex.D-1, 164 Cr.P.C statement with regard to the age of

the victim as that of 19 years.

37. PW.5 during cross-examination denied that he stated as in

Ex.D-3 and also Ex.D-4. Coming to the evidence of PW.10, the

Investigating Officer, his evidence is that he has spoken about the

investigation and examination of several witnesses. He admitted

that when he recorded the statement of PW.3, previously, she

disclosed that she voluntarily went along with the accused and

there was no compulsion. Even according to the evidence of

PW.12, the Investigating Officer, on 01.03.2004, when he was

present in the station, accused came along with PW.3, who

disclosed that they married at Annavaram and produced wedding

cards. He admitted in cross-examination about the version stated

by PW.3 as in Ex.D-1 and further version of PW.4 as in Ex.D-2

and version of PW.5 as in Exs.D-3 and D-4. So, according to them,

the victim and accused went there and sought for accommodation

after stay by stating that the victim was aged about 19 years. So,

all these go to show that the victim was asserting before the Police

and the Magistrate, previously, that she was aged about 19 years.

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So, it is crystal clear that the date of birth of the victim was not

proved by producing the relevant records regarding the entries in

the date of birth register maintained by the Municipality or the

Panchayat as the case may be. The medical evidence produced by

the prosecution is not at all convincing, as pointed out earlier.

On the other hand, the victim asserted before several persons that

she was aged about 19 years. In that view of the matter, it is to be

held that the prosecution miserably failed to prove that the victim

was a minor either within the meaning of Section 366-A or within

the meaning of Section 375 clause (6) of IPC.

38. In the light of the above and in my considered view, it is to

be held that the prosecution failed to substantiate the allegation

that the accused kidnapped the victim, who was under the age of

18 years, and had committed sexual intercourse with the victim,

who was under the age of 16 years. On the other hand, the

accused was able to probablize the defence that the victim was a

consenting party for accompanying him and other things. A

perusal of the judgment of the learned Additional Assistant

Sessions Judge reveals that appreciation of the evidence by the

learned Additional Assistant Sessions Judge was on correct lines,

as such this Court do not find any reason, whatsoever, to interfere

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with the order of acquittal, recorded by the learned Additional

Assistant Sessions Judge, duly appreciating the evidence on

record. Hence, the Appeal filed by the State must fail.

39. In the result, the Criminal Appeal is dismissed.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 21.12.2022 DSH