Pelya Tharasingh And 4 Others, vs State Of A.P., Rep By Pp.,
2022 Latest Caselaw 3925 Tel

         HONOURABLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No.320 of 2009


JUDGMENT:

1. The appellants are A1 to A5 tried for the offences under

Sections 365, 366 and 376 r/w 109 of IPC, convicted and

sentenced to undergo RI for three years each and to pay fine of

Rs.300/- each for the offence under Sections 365 and 366 IPC

and also sentenced to undergo RI for five years each and to

pay fine of Rs.500/- each for the offence under Section 376

r/w 109 of IPC vide judgment in S.C.No.375 of 2007 dated

21.03.2009 passed by the Assistant Sessions Judge at

Bodhan. Aggrieved by the same, present appeal is filed.

2. The case of the prosecution is that P.W.1 lodged

complaint Ex.P1 on 01.04.2007 stating that on 31.03.2007 in

the mid night while his family members were sleeping in the

courtyard of the house, some unknown persons came to the

house and by sprinkling chilly power in their eyes kidnapped

P.W.5 who was aged around 15 years. They searched for the

accused in the nearby villages, but they could not trace her as

such, requested the police to take action. The police having

conducted investigation found that these appellants along with

acquitted accused (A6 and A7) kidnapped P.W.5 and beat

P.Ws.1 to 3 with hands, threw chilly power in their eyes and

took P.W.5 in their Tata Sumo. P.W.5 was taken to Amrad

Thanda and kept her in the house of brother-in-law of A6.

Thereafter, on 02.04.2007, A1 to A7 took P.W.5 to Birmal

Thanda and stayed in the field, the entire night. On

05.04.2007, again the accused took P.W.5 to Gandhari X Road

in a lorry where they boarded a bus to Chilkanagar, Uppal.

There, A1 kept P.W.5 in the fear of death and committed

sexual intercourse against her will from 05.04.2007 to

17.04.2007. While A1 committed sexual intercourse, the other

accused were keeping guard.

3. The said prosecution case was narrated by P.Ws.1 to 5.

P.W.5 was also examined under Section 164 Cr.P.C. The

defence of the accused is that all the accused and prosecution

witnesses were known to each other and though P.W.5 went

on her own with A1, keeping in mind the earlier family

disputes, a false case was lodged against the accused.

4. The learned counsel for the appellants would submit that

the complaint was lodged by P.W.1 stating that some

unknown offenders have taken P.W.5 after attacking them

with chilly powder and beat them. If at all the said persons

were attacked with chilli powder, the same would have been

found at the scene of offence and seized. However, there is no

seizure of any chilly powder to infer that the case as stated by

the witnesses is correct. Further, the witnesses admitted that

all the accused are residents of the same village and the

question of filing complaint stating that persons were

unknown itself would go to show that the prosecution is

suppressing the actual happening. In fact, P.W.5 was a major

at the time of the incident and she going and staying with A1

for 17 days would go to show that she was consenting party.

It is highly absurd to say that all the accused were standing

guard outside when A1 was allegedly committing rape on

P.W.5. He relied upon the judgments of the Hon'ble Supreme

Court in the cases of; i) Kuldeep K.Mahato v. State of Bihar

[AIR 1998 Supreme Court 2694], wherein their Lordships

have held that no injuries are found on the prosecutrix

including her private parts, the conduct clearly show that she

was consenting party to the sexual intercourse and

accordingly acquitted the appellant therein.

ii) Ram Murti v. State of Haryana [ AIR 1970 Supreme

Court 1029], wherein the Hon'ble Supreme Court held that it

is necessary that the age of the victim is to be proved by

cogent evidence in order to allege an offence of rape, in a case

of consent of a minor.

iii) In Alamelu v. State rep.by Inspector of Police

[(2011) 2 Supreme Court Cases 385] the Hon'ble Supreme

Court held that the age of the girl could not be fixed on the

basis of provisional certificate unless there is evidence to

exactly state the date of birth of the victim, the evidence

regarding the age cannot be relied upon.

5. It is not known as to how P.w.1 failed to even identify his

attackers on the date of incident. Even according to him, all

the accused are his villagers. The reason for stating that some

unknown persons kidnapped his daughter is not explained by

the prosecution.

6. Further, to determine the age of P.W.5, the prosecution

has produced one bonafide conduct certificate of Saraswathi

Sishu Mandir, which was marked through Investigating

Officer. The said certificate was issued on 16.04.2007 while

P.W.5 was in the custody of A1, according to the prosecution.

It is not known as to why the bonafide and conduct certificate

was taken from the school a day prior i.e., 16.04.2007, when

the girl went missing and found only on 17.04.2007. However,

neither the parents, nor the Investigating Officer has collected

any certificate either from the municipal authorities or the

hospital authorities where P.W.5 was born. In the absence of

such positive evidence to determine the age of P.W.5, bonafide

certificate Ex.P13 marked through the Investigating Officer

cannot be made basis to determine the age of the victim as

less than 18 years as on the date of the alleged offence.

7. From the circumstances, it is improbable that A1 along

with other accused kidnapped PW.5 victim girl from the house

of P.W.1, who is the brother-in-law of P.W.5 and taken her to

different places without her consent. As seen from the cross-

examination of P.W.5, it is stated that they were cooking food

in the room throughout the said period and there were several

persons who were passing in front of the door, however, at no

point of time, did P.W.5 indicate to anyone outside or resist

during the said period of stay.

8. Since the age of P.W.5 could not be determined by the

prosecution in the facts and circumstances, it cannot be held

that P.W.5 was subjected to rape by A1 and guarded by the

other accused. The only reason for convicting the accused by

the learned Assistant Sessions Judge is on the basis of

Ex.P13, school certificate which mentions the victim was aged

below 18 years as on the date of incident. Further, the Court

concluded that the consent is of no consequence and

accordingly convicted the appellant.

9. In view of the above discussion, as the prosecution failed

to prove the age of P.W.5 and the circumstances indicate that

P.W.5 had gone with the accused on her own, the conviction

recorded against the accused/appellants cannot be sustained.

10. In the result, the conviction and sentence recorded

against the A1 to A5 vide impugned judgment in SC No.375 of

2007 dated 21.03.2009 is set aside and the accused are

acquitted. Since, the accused are on bail, their bail bonds

stand cancelled.

11. Accordingly, the Criminal Appeal is allowed. As a sequel

thereto, miscellaneous applications, if any, shall stand closed.

________________

K.SURENDER, J Date: 28.07.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No.320 of 2009

Date:28.07.2022

kvs