Telangana High Court
C.Raju, vs The State Of A.P., Rep By Pp., on 26 August, 2022
Bench: K.Surender
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.648 OF 2009
JUDGMENT:
1. The appellant is convicted for the offences under Section
366-A and 376 of IPC and sentenced to undergo rigorous
imprisonment for a period of ten years under each count vide
judgment in SC No.382 of 2008 dated 08.06.2009 passed by
the III Additional Metropolitan Sessions Judge, Hyderabad.
2. The case of the prosecution is that P.W.1 is the victim.
The appellant was known to her since she was in VIII
standard. The appellant proposed to her and also started
cutting his wrists when P.W.1 stated that she did not love him.
After a year, the parents of P.W.1 went and beat the appellant.
In turn, the relatives of the appellant beat the parents of
P.W.1. Thereafter, P.W.1 was also beaten by her parents. On
18.01.2007, the appellant asked her to accompany him on a
motor cycle from her house and she was taken to Narsampet
to Bangaramma Temple and tied Mangalasuthram (a sacred
thread tied around the neck of bride to fulfill the customary
act of concluding the marriage). Both the appellant and P.W.1
statyed near Medak Church for five days and thereafter, at
Yadagirigutta for five days. From there, the appellant took a
room in Medchal and stayed for one day. During the said
period of their stay, they had sexual intercourse. P.W.1
further stated that that though she refused to accompany, the
appellant promised to marry her and accordingly, believing
that he would marry, she had sexual relation with the
appellant. The police found the victim P.W.1 and brought her
and handed over to her parents.
3. The prosecution examined the mother of P.W.1 as P.W.2
and also the owner of the lodge where P.W.1 and the appellant
stayed as P.W.3. PW.4 is the Doctor, who examined the victim
P.W.1 and found that there was no semen or spermatozoa
detected on the vaginal smears collected from P.W.1. P.W.4,
the Doctor opined that though there were no external injuries
on the body or the private parts but sexual intercourse could
not be ruled out.
4. Learned counsel for the appellant submits that the
prosecution has failed to prove either by producing any birth
certificate or tests conducted by Doctor to determine the age of
P.W.1. In the absence of proof by the prosecution that PW.1
was below 18 years, the conviction cannot be maintained
under Section 366-A and 376 of IPC. Therefore, the appellant
has to be acquitted of the charges.
5. On the other hand, learned Public Prosecutor submits
that the victim-P.W.1 was aged 17 years when PW.4 Doctor
examined her. As seen from her evidence, the victim herself
stated that she is minor, for which reason, no further evidence
is required to prove that P.W.1 was less than 18 years on the
date of incident. The testimony of P.W.1 is convincing as such
the conviction recorded by the learned Sessions Judge cannot
be interfered with.
6. The prosecution has not made any efforts either to secure
the birth certificate of P.W.1 to establish that P.W.1 was aged
less than 18 years when the alleged incident had taken place
nor take any steps to send P.W.1 for age to be determined by
an expert. No reasons are given as to why the prosecution has
not taken any steps in the direction of determining the age of
P.W.1. When the specific case of the prosecution is that P.W.1
victim girl was aged less than 18 years, it is the bounden duty
of the prosecution to establish that P.W.1 was minor and aged
less than 18 years.
7. As seen from the evidence of P.W.1, she had willingly
gone with the appellant and married him in a temple. After
marriage, she stayed with the appellant for five days at Medak
and also for five days at Yadagirigutta. The hotel owner who
was examined never mentioned that there was any kind of
force and that he has seen any unusual about the appellant
and P.W.1, when they stayed in the hotel.
8. There is nothing in the evidence of the prosecution to
suggest that P.W.1 was less than 18 years or that the
appellant had used any force to have sexual intercourse with
P.W.1. The very narration of P.W.1 goes to show that she had
all the time consented to accompany the appellant to various
places.
9. In the said circumstances, the prosecution has failed to
prove that P.W.1 was a minor for which reason, Section 366-A
of IPC is not attracted and neither the offence under Section
376 of IPC for which, the appellant was convicted.
Accordingly, the conviction recorded by the learned Sessions
Judge is set aside.
10. In the result, the Criminal Appeal is allowed. Since the
appellant is on bail, his bail bonds shall stand cancelled.
__________________
K.SURENDER, J
Date: 26.08.2022
kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.648 OF 2009
Date: 26.08.2022.
kvs
