Wadla Raju, vs The State Of Ap Rep By Its Pp Hyd.,
2023 Latest Caselaw 538 Tel

          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,

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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

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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

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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

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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

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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

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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