Andhra HC (Pre-Telangana)
Palaparthi Vijayakumar vs The State Of A.P. Rep. By Public ... on 20 December, 2002
Equivalent citations: 2003CRILJ1670
Author: K.C. Bhanu
Bench: K.C. Bhanu
JUDGMENT
1. This appeal is directed against the judgment in Sessions Case No. 196/1993 on the file of the Sessions Judge, Mahila Court, Visakhapatnam, wherein the sole accused was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, and in default to undergo simple imprisonment for six months for the offence under Section 376 of the Indian Penal Code, rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, and in default, to undergo simple imprisonment for six months for the offence under Section 366 I.P.C., and rigorous imprisonment for three years for the offence under Section 506(2) I.P.C. All the sentences were directed to run concurrently.
2. The brief facts that are necessary for disposal of the appeal, as per the case of the Prosecution, may be delineated as follows:
That the accused was working as Junior Assistant in Government High School, Visakhapatnam, that the victim-Kundarapu Sivalakshmi, who was examined in this case as P.W.1, was a resident of Ramachandrapuram village, that on 30.4.1993 at about 6.30 a.m., P.W.1 and her father-P.W.3, started from their house to go to Employment Exchange at Visakhapatnam to get the name of P.W.1 registered therein, that at that time the accused approached them and told P.W.3 that he would get the said work done as he knew all the persons working in the Employment Exchange, that due to faith in the accused, P.W.3 sent P.W.1 to Visakhapatnam along with the accused, that accordingly both the accused and P.W.1 proceeded to Visakhapatnam by bus, that after getting down from the bus the accused informed P.W.1 that her photographs were necessary for registration of her name in the Employment Exchange, that the accused took P.W.1 to a Photo Studio, that thereafter they went to the Employment Exchange, that the accused informed P.W.1 that there was heavy rush in the Employment Exchange and as such he took P.W.1 to a hotel and they had Tiffin in the hotel, that when the were going to the Employment Exchange after taking Tiffin, P.W.6-Bandaru Mutyalanaidu saw them going together near the Employment Exchange, that the accused informed P.W.6 that after registration of the name of P.W.1 in the Employment Exchange he would send her back to Ramahcnadrapuram, that after going to the Employment Exchange the accused told P.W.1 that there was heavy rush in the Employment Exchange and left here there and returned at about 5.00 p.m., and got her name registered in the Employment Exchange, that thereafter the accused took P.W.1 to his house stating that there would be no buses available from Visakhapatnam to Chodavaram after 5.00 p.m., that P.W.1 slept in the house of the accused, that during the midnight the accused woke her up, threatened her at the point of knife and had intercourse with her forcibly and obtained a letter from her to the effect that she would marry him, that he also threatened that if she revealed the incident to anybody, he would kill her, that the accused forcibly removed her clothes from her body and took nude photographs of her upper portion of the body with a camera, that he again threatened her that he would kill her and throw her body into the sea if she informed the incident to anybody, that on the next day of the incident at about 8.00 a.m., she returned to her house, that P.W.3 asked her as to why she did not return on the previous night, but she did not reveal the incident to her father due to fear of the accused and to save her family's honour, that on 11.6.1993, P.W.2-K. Atchayamma, the elder sister of P.W.1, received a cover by post which contained a nude photograph of P.W.1 and a letter in the handwriting of P.W.1 expressing her intention to marry the accused, that she felt very bad as the accused was of the age of her father, and proceeded to Ramachandrapuram and informed about the same to her father, that then P.W.1 informed about the entire incident to them, that in order to save the honour of their family, they hesitated to reveal the incident to police or elders, that ten days thereafter the accused started to show the nude photograph of P.W.1 and the letter alleged to have been written by P.W.1 to the villagers of Ramchandrapuram including P.W. 2, that as the accused imputed unchastity to P.W.1 and degraded the honour of the family, P.W. 1 scribed a report on 23.6.1993 and gave it to the Inspector of Police, II Town Police Station, Visakhapatnam, that basing on the said report, the police registered a case in crime No. 278/1993 under Section 376 I.P.C., and issued copies of the F.I.R. to all concerned, that thereafter the Inspector of Police took up investigation and examined all the witnesses, that on 24.6.1993 at about 6.30 p.m., the Inspector of Police arrested the accused at Visakhapatnam in the presence of mediators, that the accused led the police and the mediators to his house from where the police seized two copies of the nudge photographs of the victim girl along with a negative, that on 30.6.1993 the Inspector of Police sent P.W. 1 for medical examination, that on the same day the Doctor examined P.W. 1 and issued a wound certificate-Ex.P4 stating that the Hymen of P.W. 1 was not intact and old tears were there, and opined that the possibility of P.W.1 having had sexual intercourse could not be ruled out, that on 26.7.1993, the Inspector of Police obtained the date of birth certificate of P.W.1 from the Head Master of Mandal Praja Parishad Elementary School at Ramachandrapuram, that P.W.1 was also examined by the Professor of Forensic Medicine, Andhra Medical College, Visakhapatnam for determining the age of the deceased, and that after completion of investigation charge sheet was laid before the learned V Metropolitan Magistrate, Visakhapatnam under Sections 366, 376, 342 and 506(2) I.P.C.
3. The learned Magistrate committed the case to the Court of Sessions, Visakhapatnam, as the case was exclusively triable by Court of Sessions. The learned Sessions Judge, after hearing both parties regarding the charges, framed charges under Sections 366, 342, 376 and 506(2) I.P.C., against the accused. When the charges were read over and explained to the accused, he pleaded not guilty.
4. At the trial, P.Ws. 1 to 12 were examined and Exs.P1 to P19, besides M.O.1, were marked on behalf of the Prosecution, and Exs.D1 to D3 were marked on behalf of the accused.
5. The trial Court, after hearing both sides and considering the evidence on record, came to the conclusion that the Prosecution amply proved that P.W.1 was a minor i.e., below 18 years of age by the date of incident, that the accused kidnapped her with an intention to commit rape on he, that he committed rape on her forcibly, and that he also committed criminal intimidation, and accordingly convicted and sentenced the accused as aforesaid. However, the trial Court found the accused not guilty of the offence under Section 342 I.P.C., and thus acquitted him of the said charge.
6. Aggrieved by the aforesaid conviction and sentence, the accused filed the present appeal.
7. Learned counsel for the appellant contended that the trial Court proceeded on the presumption that P.W. 1 was a minor and convicted the accused under Section 376 I.P.C., that the trial Court did not appreciate the evidence in proper perspective, that P.W.1 was a consenting party and therefore the question of kidnapping her and committing rape on her does not arise, that the incident was not reported to anybody for about 50 days, that no explanation was given for not lodging the report with the police immediately after the incident, that the seizure of the photographs and the letter was invented, and that the case was foisted against the accused with ulterior motives and with an intention to avoid payment of the money due by P.W.1 to the accused. The learned counsel, therefore, prays to acquit the accused.
8. The learned Public Prosecutor contended that there was absolutely no reason for P.W.1 to foist a false case against the accused, that there was every reason for the delay in reporting the matter to the police as the honour of the family of P.W.1 was involved, that when the accused started showing the nude photographs of P.W.1 to the villagers, P.W.1 thought it fit to give report to the police, that P.Ws. 4 to 6 are independent witnesses, that the trial Court, after considering the evidence on record properly, came to the right conclusion, and that therefore there are no grounds to interfere with the judgment under appeal.
9. The accused was convicted and sentenced for the offences under Sections 366, 376 and 506(2) I.P.C. I shall now deal with each of those charges to ascertain whether the judgment of conviction and sentence passed by the trial Court is proper, legal and correct.
10. The essential ingredients of Section 366 I.P.C. are - (a) kidnapping or abduction of a woman, (b) the act is done - (i) with intent that she may be compelled to marry any person against her will, or (ii) knowing it to be likely that she will be so compelled, or (iii) in order that she may be forced or seduced to illicit intercourse, or (iv) knowing it to be likely that she will be so forced or seduced. Thus, Section 366 I.P.C. requires kidnapping or abduction of a woman with the requisite intent. The intent must be to compel her to marry any person against her will or to force or seduce her to illicit intercourse.
11. The relevant portion of Section 375 I.P.C. is extracted below for the sake of convenience.
375. Rape - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: --
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - x x x x x x x x x x Fifthly - x x x x x x x x x x x Sixthly - Without her consent, when she is under sixteen years of age.
Seventhly - x x x x x x x x x Explanation - x x x x x x xx Exception - x x x x x x x xx
12. Thus, the following essential ingredients must be satisfied for an offence to attract Section 375 I.P.C.
(a) A man has sexual intercourse with a woman.
(b) Such intercourse falls under any of the six clauses of the Section.
(c) The case does not fall within the exception to the Section.
If rape is committed against a girl when she is under sixteen years of age, the question of consent is immaterial. But, if a man has sexual intercourse with a woman, who is above the age of 16 years, with her consent, then he cannot be convicted under Section 376 I.P.C.
13. Now it has to be seen whether P.W.1 was under the age of 16 years by the date of the incident, whether the accused had sexual intercourse with P.W.1 with her consent, and whether he committed criminal intimidation.
14. The trial Court gave a categorical finding that P.W.1 was of below 189 years by the date of the offence, but it proceeded on the presumption that if a girl was aged below 18 years, then she was minor, as she was below the age of 18 years by the date of the offence. But, as per the sixth clause of Section 375 I.P.C., a man is said to commit rape against a woman without her consent when she is under the age of sixteen years by the date of the incident. Therefore, the observation of the trial Court that since P.W.1 was minor i.e. aged below 18 years by the date of the incident, the offence committed by the accused would fall under the category of "rape", is not correct.
15. Ex.P17 is the study certificate of P.W.1 issued by P.W.11 in which the date of birth of P.W.1 was mentioned as 1.6.1976. P.W.11 was working as Assistant Teacher, Mandal Parishad Elementary School, Pothanavalasa. He deposed that he issued Ex.P17-study certificate on the basis of entry in Page No. 6 at admission number 73, and that as per the said entry, the date of birth of P.W.1 was 1.6.1976. He denied the suggestion given to him that the police created the admission register and it did not contain genuine entries. There is absolutely no reason for P.W.11 to foist the admission register or Ex.P17. He was a responsible Teacher working in the Mandal Praja Parishad School. Nothing is elicited in his lengthy cross-examination to discredit his testimony.
16. P.W.9 was a Professor, Forensic Medicine, A.U. College, Visakhapatnam. On physical, dental and radiological examination of P.W.1, P.W.9 determined the age of P.W.1 as not less than 17 years and not more than 18 years by the date of the examination i.e., 23.8.1993. Ex.P6 is the age determination certificate issued by him. Learned counsel for the appellant relying upon an observation made by the Apex Court in Jaya Mala Vs. Home Secretary, Govt. of J & K, , in which it was observed that judicial notice could be taken that the margin of error in age ascertained by radiological examination was two years on either side.
17. There cannot be any dispute that the age as determined by radiological examination is not conclusive proof of the age of a person, and is always subject to a margin of plus or minus two years. But, in the cross-examination of P.W.1 it is elicited that her date of birth was 1.6.1976. So, from the evidence of P.W.1, coupled with the evidence of P.W.11 and the recitals of Ex.P17, it can be said that P.W.1 was aged 17 years 22 days by the date of giving F.I.R. i.e., 23.6.1993. The alleged incident took place on 30.4.1993, and by that date P.W.1 was aged 16 years 10 months and 29 days. So, P.W.1 was certainly not under the age of 16 years by the date of the incident.
18. P.W.3 is the father of P.W.1. It is his evidence that while he and P.W.1 were going to Visakhapatnam to get the name of P.W.1 registered in the Employment Exchange, the accused told him that he would get that job done, and, therefore, he sent his daughter along with the accused reposing faith in him as he used to give tuitions to P.W.1. P.W.1 deposed that at about 5.00 p.m., on 30.4.1993 the accused got her name registered in the Employment Exchange. P.W.6 stated that he saw the accused and P.W.1 at about 12.30 p.m., or 1.00 p.m. near the Employment Exchange. The Prosecution produced Ex.P12-original employment exchange registration card of P.W.1 wherein the date of registration was noted as 30.4.1993. On the admissibility of this document, the trial Court relied upon a decision in Umesh Chandra Vs. State of Rajasthan, . Learned counsel for the appellant has not disputed this aspect of the matter. There is no reason for this Court to deviate from the findings of the trial Court that the accused and P.W.1 went together to Visakhapatnam for registration of the name of P.W.1 in the Employment Exchange.
19. It is the specific case of P.W.1 that while she was sleeping in the house of the accused, he woke her up and had sexual intercourse with her by putting her in fear at the point of knife and thereafter he took her nude photographs by committing criminal intimidation. On the other hand, it is the case of the accused that P.W.1 was willingly moved with him and professed her love towards him and, therefore, she being a consenting party, the question of rape or abduction did not arise.
20. The incident in question took place on 30.4.1993. P.W.1 gave Ex.P2-report to P.W.12-Inspector of Police on 23.6.1993. Basing on Ex.P2-report, he registered a case and investigated into. The report was given about 50 days after the incident.
21. There was abnormal delay in lodging F.I.R. with the police. No doubt, the delay in giving F.I.R. is not per se a ground to reject the case of the Prosecution, if the other evidence on record is trustworthy. If delay is properly explained and the explanation is natural in the facts and circumstances of the case, then, such delay would not matter. With this legal position in view, I would now proceed to scrutinize the evidence on record whether the delay in lodging the F.I.R. was properly explained and the explanation was natural in the facts and circumstances of the case.
22. The explanation given by P.W.1 was that she was afraid of the accused and due to fear of loss of respect to her family she did not reveal the incident to anybody. There was no need for P.W.1 or P.W.3 to fear for the accused, because the accused was not a resident of Ramachandrapuram. He was the resident of Visakhapatnam. For going to Ramachandrapuram from Visakhapatnam, it would take two hours by bus. Therefore, the question of the accused going to the village would not arise, as he was not resident of the village. Nothing prevented P.W.1 to report the incident to police immediately after the occurrence of the incident or, at any rate, within a few days of the incident. There is no evidence on record to show that the accused was such an influential person or was of such character as to cause an apprehension in the mind of P.W.1 that he would kill her in case she revealed the incident to anybody. In view of this discussion, I hold that the explanation offered by P.W.1 for not reporting the matter to anybody immediately the incident is not natural.
23. As already observed above, mere delay in lodging the F.I.R. is not fatal to the case of the Prosecution, provided the other evidence on record is convincing and trustworthy. It is, therefore, to be seen whether the evidence of P.W.1 is convincing and inspires the confidence of this Court.
24. In the cross-examination of P.W.1, she stated at one point of time that she had no acquaintance with the accused and she never spoke with him prior to the incident, and at another point of time she deposed that the accused used to give tuition to her. When it was suggested to her that Ex.D1-photograph was taken on 7.10.1992, she stated that it was taken on 30.4.1993. Being conscious of the fact that P.W.1 had taken photograph with the accused and probably with an attempt to explain as to how Ex.D1 came into existence, she deposed for the first time in the Court that the accused took her to a photo studio in the afternoon of the date of incident and while her photograph was being taken the accused came and stood beside her. But, she did not state this fact in Ex.P2, which was the earliest report in the case. It is not understandable as to why if the accused had an evil motive, he would create evidence by voluntarily joining with P.W.1 when her photograph was being taken, so as to inculpate himself in the offence.
25. P.W.1 deposed that the accused made her wait till 5.00 p.m., on the date of incident, and since there were no buses after 5.00 p.m., from Visakhapatnam to Chodavaram she could not go back to her village and had to stay in the house of the accused on the night of the incident. It is the case of the Prosecution that P.W.1 along with the accused went to the Employment Exchange at 12 noon. Thereafter there was no need for her to stay till 5.00 p.m. To get over this, she invented a cause that the accused left her at the Employment Exchange stating that there was heavy rush and returned to the Employment Exchange at about 5.00 p.m. This fact was stated for the first time in her evidence in the Court. It is clearly an improvement. The concerned employees in the Employment Exchange were not examined to speak about the time at which the registration was completed. No explanation is forthcoming for non-examination of the employees of the Employment Exchange.
26. To show that P.W.1 had acquaintance with the accused even prior to the date of incident, some letters were confronted to P.W.1. After going through some of the letters, she denied to have addressed those letters to the accused. When a letter containing the postal stamp, dated 27.3.1993, was confronted to P.W.2, without looking into the contents, she stated she had never addressed any letters to the accused. It would be a different matter if she denied to have addressed the letter to the accused after going through its contents. P.W.1 does not seem to be speaking truth. Prior to the incident P.Ws. 1 and 3 did not inform the accused regarding their intention to go to the Employment Exchange. P.W.3 and the accused had known each other for two years from before the incident. Therefore, there was every possibility for P.W.1 requesting the accused to get her name registered in the Employment Exchange. Had P.W.1 really not been a consenting party to the sexual intercourse, she would not have gone to the house of the accused at Visakhapatnam.
27. Under these circumstances, it is not safe to place implicit reliance on the evidence of P.W.1 so as to convict the accused with serious offences of kidnapping her and committing rape on her.
28. P.W.2 is the sister of P.W.1, who deposed that P.W.1 informed her about the incident. Except to the effect that she had received a nude photograph of, and a letter alleged to have been written by, P.W.1, her evidence is of not much helpful to the case of the Prosecution.
29. P.W.3 is the father of P.W.1. Even after coming to know about the incident in question, he did not report the matter immediately to anybody. No explanation was given by him as to why he did not report the matter either to village elders or to the police immediately after coming to know about the incident. Though he stated that his family respect was involved in the matter, he did not state before the police so when he was examined by them under Section 162 Cr.P.C.
30. P.W.4 stated that the accused showed her Ex.P1-photograph when she was sitting with another woman by name Chiranjeevi. She was totally a stranger to the accused. There was no reason for the accused to show Ex.P1-photograph to an unknown person. Therefore, the evidence of P.W.4 does not inspire confidence.
31. P.W.5 stated that the accused showed the photograph of P.W.1 and a letter written by her. He stated that he did not observe the photograph. Therefore, his evidence is not of use to the Prosecution. P.W.6 was the person who saw the accused and P.W.1 at about 12.30 p.m., or 1.00 p.m., on the date of the incident near the Employment Exchange. He too stated that on one occasion the accused showed him Ex.P1-photograph. P.W.6 was the resident of Jogannapalem. When he was not admittedly the resident of Ramachandrapuram village, it is unlikely that the accused would have shown Ex.P1-photograph to him.
32. P.W.7 is the Doctor who issued Ex.P4-certificate. She admitted that she examined P.W.1 56 days after the incident. She could not give any specific opinion with regard to the sexual intercourse, due to lapse of time. Further, Ex.P4-certificate does not contain the details of gynecological examination of P.W.1. P.W.8 is the Assistant Radiologist, who took X-rays of P.W.1. P.W. 9 is the Doctor who gave opinion about the age of P.W.1.
33. P.W.10 is one of the mediators present at the time of drawing Ex.P7-report. He admitted that Ex.P7-report was scribed to the dictation of P.W.12-the C.I. of Police. According to him, the police seized Exs.P9 and P10 at the instance of the accused. But, according to P.W.12, Ex.P9 was not seized by him. P.W.2 stated that she received Ex.P1-photograph by post and she handed over it to the police. Admittedly, Exs.P1 and P9 contain the dates as 31.8.1992. According to P.W.10 he put the date on the photographs. Therefore, no reliance can be placed upon the evidence of P.W.10.
34. P.W.12 is the Investigating Officer. He also stated that he seized Ex.P1 from the accused. His evidence is in contradiction with that of P.W.2 on this aspect. Even assuming for a moment that Exs.P1 and P9 were seized from the house of the accused, it can, at best, be one of the circumstances that can be taken into consideration in favour of the Prosecution. But, possession of Ex.P1 by the accused does not ipso facto lead to an irresistible conclusion that the accused did commit rape on P.W.1 or that he had taken Ex.P1-photograph.
35. From the foregoing discussion, it is manifest that the evidence of P.Ws. 1 to 12 is of no help to the Prosecution. What remains is only the evidence of P.W.1. Even though she went to the Employment Exchange along with the accused at about 10.30 a.m., on the date of incident, there was no proper explanation at the earliest point of time as to why she had to wait till 5.00 p.m., and the explanation given by her during the course of evidence is not much convincing. The reasons given by P.W.1 for not reporting the incident immediately either to her father, or to any of her relatives or friends are not convincing too. On the other hand, Ex.D1 supports the version of the accused that P.W.1 used to move with him freely. Therefore, as already stated supra, her evidence does not inspire confidence. Hence, she cannot be placed under the category of 'truthful witness'.
36. The charge that the accused committed criminal intimidation can be said to have been not proved, since there was no reason for P.W.1 to fear for the accused, as already discussed in paragraph 22.
37. In view of the evidence on record and in the light of the above discussion at length, this Court has no hesitation in holding that P.W.1 was a consenting party to the sexual intercourse.
38. As per the third clause of Section 375 I.P.C., sexual intercourse with a woman, even with her consent, is rape, when her consent has been obtained by putting her in fear. Though P.W.1 stated that at the point of knife the accused committed rape on her, since I have already held that P.W.1 is not a truthful witness, her evidence on this aspect cannot be believed.
39. In the light of the above discussion and keeping in view that the evidence on record does not lead to the conclusion unerringly pointing the guilt to the accused, it has to be held that the Prosecution has failed to prove the charges levelled against the accused beyond all reasonable doubt. Therefore, benefit of doubt should be given to the accused.
40. In the result, the appeal is allowed. The conviction and sentence recorded by the trial Court are set aside, and the accused is acquitted for the charges levelled against him. The bail bonds shall stand cancelled. Fine amount, if paid, shall be returned to the accused. If the accused is in jail, he be set at liberty forthwith, if not required in any other case