Andhra Pradesh High Court - Amravati
Madaseri Prabhakar, Kerala State vs The State Of Ap.Through Sho Iv Town Lo ... on 22 January, 2024
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL No.1557 OF 2010
JUDGMENT:-
Challenge in this criminal appeal is to the judgment, dated 20.12.2010 in Sessions Case No.4 of 2008, on the file of the Special Sessions Judge for trial of Cases under SCs & STs (POA) Act, Visakhapatnam (Old S.C.No.4 of 2005 on the file of I Additional Metropolitan Sessions Judge, Visakhapatnam) ("Special Judge" for short) where-under the learned Special Judge found the accused guilty of the charges under Sections 363 and 376 of the Indian Penal Code ("IPC" for short) and further the charge under Section 3(1)(xii) of SC & ST (POA) Act, 1989, convicted him under Section 235(2) of the Code of Criminal Procedure Code ("Cr.P.C." for short) and after questioning him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for five years for each for the said charges and to pay fine of Rs.500/- for each charge and in default to suffer simple imprisonment for one month each and that the sentences of imprisonment as above shall run concurrently.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Special Judge for the sake of convenience.
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3) The Sessions Case No.4 of 2008, on the file of the Special Sessions Judge for trial of Cases under SCs &STs (POA) Act, Visakhapatnam (Old S.C.No.4 of 2005 on the file of I Additional Metropolitan Sessions Judge, Visakhapatnam) arose out of a committal order in PRC No.11 of 2005 on the file of I Additional Chief Metropolitan Magistrate, Visakhapatnam in Crime No.287 of 2004 of IV Town Law & Order Police Station, Visakhapatnam.
4) The case of the prosecution, in brief, according to the charge sheet filed by the Assistant Commissioner of Police, North Sub-Division, Visakhapatnam City, in the aforesaid Crime Number is that the accused is a Contractor and living with his wife in Madhavadhara, Vuda Layout in a rented house. L.W.2-Duppada Adilakshmi and L.W.3-Duppada Ellayya are also living at the same place as watchmen in an apartment situated nearby the house of the accused along with their minor daughter i.e., L.W.1- victim, aged about 15 years. As they are poor, they sent their daughter to the house of accused as a servant-maid. While serving in the house of accused as a servant-maid, the accused used to abuse L.W.1 sexually by placing his hands on her waist. Whenever his wife was in the bathroom, the accused used to have sexual intercourse with her many times in his house. As the parents of the victim came to know about the behaviour of the 3 accused with the victim, they shifted the residence to Pothinamallayyapalem in order to avoid danger to the victim in the hands of the accused. Even after change of the residence, the accused did not stop meeting L.W.1 by taking her to other places. While so, on 15.09.2004 in the afternoon, victim was found missing for which the parents of victim suspected the accused in this regard and asked him about their daughter. The accused and his wife handed over the missing girl on 02.10.2004 at the house of L.W.4-Duppada Parvathi at Abidnagar, Akkayyapalem, which indicated that missing girl was in the custody of the accused. On 03.10.2004 also accused went to the house of L.W.4-Parvathi and had a talk with the victim. Again on 04.10.2004 victim was found missing from the house of L.W.4- Parvathi for which L.W.2, the mother of the victim, submitted a report in IV Town Law & Order Police Station on 12.10.2004 after causing enquiries about missing girl. The said report was registered as a case in Crime No.287 of 2004 under the head of "girl missing" by L.W.15-K. Rama Chandra Rao, Asst. Sub Inspector of Police, IV Town Law & Order Police Station. During investigation, the missing girl was found as she was brought to the police station by her parents. L.W.16-K. Lakshmana Murthy, Sub Inspector of Police, IV Town Law & Order Police Station, recorded the statement of missing girl in which she stated that 4 she was kidnapped by the accused and his associates whose names she does not know as their faces were covered with black masks to an unknown place, exploited her sexually by the accused several times and she was dropped to nearby the house of her aunt i.e., L.W.4 at Abidnagar on 04.10.2004. On the strength of the statement of victim, who was a minor, aged about 15 years and belonged to Scheduled Caste, the section of law was altered from the head of "girl missing" to Sections 363 and 376 of IPC and Section 3(1)(xii) of SC & ST (POA) Act, 1989 on 14.10.2004 at 11-00 p.m., by the Sub Inspector of Police. He issued express FIR to the Officers concerned and original altered FIR to the Court. L.W.17-Eshak Mohammed, Inspector of Police, sent the victim girl for medical examination and forwarded a letter to the officers for appointing the investigating officer as it is a case of atrocities on Scheduled Caste girl. On appointment L.W.18- B. Mahendra Reddy, the Assistant Commissioner of Police, L & O North Sub-Division, Visakhapatnam City took up investigation and arrested the accused on 08.11.2004 and sent him for medical examination for potency test and thereafter sent him for remand. He also forwarded the material objects for chemical analysis. L.W.19-B.D. Patro, Assistant Commissioner of Police, continued further investigation. L.W.20-C. Ranga Reddy, 5 Asst. Commissioner of Police continued further investigation and filed charge sheet. Hence the charge sheet.
5) The I Additional Chief Metropolitan Magistrate, Visakhapatnam, took the cognizance of the case under Sections 363 and 376 of IPC and Section 3(1)(xii) of SC & ST (POA) Act, 1989 and after appearance of the accused and after complying the formalities under Section 207 of Cr.P.C., committed the case to the Metropolitan Sessions Judge and thereupon it was numbered as Sessions Case No.4 of 2005 and made over to the I Additional Metropolitan Sessions Judge, Visakhapatnam.
6) On appearance of the accused before the learned I Additional Metropolitan Sessions Judge, Visakhapatnam, charges under Sections 363 and 376 of IPC and Section 3(1)(xii) of SC & ST (POA) Act, 1989 against the accused were framed and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
7) Later, on establishment of the Special Sessions Judge for trial of Cases under SCs &STs (POA) Act, Visakhapatnam, the case was transferred during the course of trial and renumbered as Sessions Case No.4 of 2008.
8) Before the learned Special Judge, to bring home the guilt against the accused, the prosecution examined P.W.1 to P.W.19 and got marked Ex.P.1 to Ex.P.21. During cross 6 examination of P.W.1 and P.W.5, Ex.D.1 and Ex.D.2 were marked respectively. After closure of the evidence of prosecution, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the same and stated that the parents of the victim demanded some money from him and as he did not accept their request, they filed a false case against him and that he got defence witnesses. In furtherance of the defence, the accused examined D.W.1, his wife and further examined himself as D.W.2. Further during cross examination of D.W.2 Ex.D.3 to Ex.D.6 were marked.
9) On conclusion of the trial and on considering the oral as well as the documentary evidence, the learned Special Judge found the accused guilty of the charges, convicted him under Section 235(2) of C.P.C. and after questioning him about the quantum of sentence, sentenced him as above. Felt aggrieved of the aforesaid conviction and sentence, the unsuccessful accused filed the present Criminal Appeal.
10) Now, in deciding the present criminal appeal, the points for determination are as follows:
(1) Whether the prosecution proved that the accused kidnapped the victim girl from lawful custody of her parents in the manner as alleged by the prosecution?7
(2) Whether the prosecution proved that the accused subjected the victim to commission of rape and further taking advantage of the fact that the victim is of Scheduled Caste exploited her sexually within the meaning of Section 3(1)(xii) of SC & ST (POA) Act, 1989?
(3) Whether the prosecution proved the aforesaid charges against the accused beyond reasonable doubt?
(4) Whether the judgment of the learned Special Judge is sustainable under law and facts?
POINT NOs.1 TO 4:
11) P.W.1 was no other than the victim, who supported the case of the prosecution. P.W.2 was mother of the victim.
P.W.3 was father of the victim. P.W.4-D. Parvathamma, who was no other than the younger sister of P.W.2. P.W.5 was owner of Kirana shop, who was examined by the prosecution to speak that the victim made telephone from public telephone booth in two occasions. P.W.6 was examined by the prosecution to speak of the fact that the parents of the victim were attacked by some persons and that there was a quarrel, etc. P.W.7 was the person who issued Study Certificate of the victim showing her age. The prosecution examined P.W.8-The Mandal Revenue Officer to prove the fact that the victim belongs to Scheduled Caste and through his examination Ex.P.9, the letter by him to the 8 Assistant Commissioner of Police, intimating the caste of P.W.1 was marked. The prosecution examined P.W.9 to speak to the fact that the victim by the time of her examination was carrying pregnancy of 14 to 16 weeks. Further the prosecution examined P.W.10 to speak about the potency of the accused to commit sexual intercourse. P.W.11 was Assistant Director, RFSL, who examined the material objects and furnished Ex.P.13 opinion. The prosecution examined P.W.12 to speak to the fact that the accused belongs to other caste. P.W.13 was the person, who examined the victim physically, dentally and radio logically to state her age as that of 16 years and through his examination Ex.P.15 was marked. P.W.14 was the Assistant Sub Inspector of Police, who recorded the statement of P.W.2 and registered the same as a case in Crime No.287 of 2004 under the head of "girl missing". P.W.15 was the Sub Inspector of Police, who altered the Section of law basing on the statement of the victim during investigation. P.W.16 was the Inspector of Police, who came to know about the alteration of FIR into the provisions of Sections 363 and 377 of I.P.C. and Section 3 (1)(xii) of SC & ST (POA) Act, 1989 and intimated to the Commissioner of Police to appoint an investigating officer. P.W.17 was the investigating officer i.e., the Assistant Commissioner of Police, North Sub-Division, who spoke of certain part of investigation. P.W.18 was the successor of P.W.17 who spoke of certain part of investigation. P.W.19 was 9 the successor of P.W.18. D.W.1 was wife of accused and D.W.2 was the accused.
12) Sri Syed Ghouse Basha, the learned counsel appearing for the appellant, would contend that the prosecution filed the charge sheet with bundle of allegations. According to the case of the prosecution, victim was working as servant-maid in the house of accused and the first episode of kidnapping was on 15.09.2004. According to the case of the prosecution, she was traced on 02.10.2004. A statement was recorded from P.W.2 on 12.10.2004. On 14.10.2004 victim was said to be traced and the arrest of the accused was on 08.11.2004. It is not understandable as to why P.W.2 and P.W.3, the parents, maintained silence till 12.10.2004 when the victim was found missing on 15.09.2004 and was traced on 02.10.2004. They did not choose to lodge a report on 02.10.2004 atleast. Basing on the alleged second episode they thought of to lodge a report on 12.10.2004. The defence of the accused is that on account of several differences he was implicated falsely. In furtherance of the defence, the accused examined his wife as D.W.1 and examined himself as D.W.2. The learned Special Judge did not give any credence to the testimony of D.W.1 and D.W.2. He would strenuously contend that when P.W.2 and P.W.3 claimed that they were informed by victim i.e., P.W.1 that she was subjected to rape by the accused, but P.W.1 did not disclose that 10 the accused committed rape on her. There was no substantial evidence from the mouth of P.W.1 that accused committed rape on her. In the absence of a say from P.W.1, there was no justification to maintain conviction under Section 376 of IPC and Section 3 (1)(xii) of SC & ST (POA) Act, 1989. Even otherwise, absolutely, there was no corroboration to the testimony of P.W.1. According to the answers spoken by the victim, it appears that she was a consenting party to go along with the accused. According to the defence of the accused, he never enticed away the victim. The conduct of P.W.1 throughout was highly improbable and highly incredible. According to the parents, they were enquiring with the accused as to what happened to the victim and the accused was telling that she would come within short. So, it goes to show that the accused had no control over the victim. P.W.2 to P.W.4 were kith and kin of the victim. The evidence of P.W.1 to P.W.4 is highly interested in nature. There was no proper evidence to prove the age of the victim. Authenticated evidence was not produced by the prosecution. The prosecution did not explain the delay. On account of delay in lodging the report, there was every possibility for embellishments and exaggerations and it is fatal to the case of the prosecution. The official witnesses for the reasons best known to them supported the case of the victim. The medical evidence is not at all convincing even to ascertain the age of the 11 victim. The learned Special Judge on erroneous appreciation of the evidence, convicted the accused and sentenced him for the charges framed, as such, the criminal appeal is liable to be allowed.
13) Sri N. Sravan Kumar, learned counsel, representing the learned Public Prosecutor, would contend that according to the evidence of P.W.1, she was aged about 15 years as on the date of offence. Accused did not dispute or challenge the testimony of P.W.1 suggesting a different age. The prosecution examined the Headmaster, who spoke to the fact that according to the school record, the date of birth of the victim as mentioned in Ex.P.8. According to Ex.P.8, the date of birth of the victim was on 22.08.1989. She was aged about 15 years as on the date of commission of offence. Apart from the evidence of P.W.7 coupled with Ex.P.8, the prosecution also examined P.W.13, the Assistant Director of Forensic Medicine, who examined the victim physically, dentally and radio logically and opined that she was aged about 16 years and Ex.P.15 is the opinion with regard to the age of the victim along with X-rays three in number. So, the prosecution proved the age of the victim as that of 15 years or 16 years by examining the school authorities and also by examining the medical officer belonged to Forensic Department. P.W.2 to P.W.4 were not the witnesses to the kidnapping or the commission of rape. However, P.W.2 and P.W.3 were no other 12 than the parents of victim. According to the evidence available on record, P.W.1 was of the age of 15 years as on the date of commission of offence. The ingredients of Section 363 of IPC are squarely attracted. The case of the prosecution is that the accused enticed away the minor girl, aged about 15 years, from the lawful custody of the guardianship. Though P.W.1 did not speak that accused committed rape, but P.W.2 and P.W.3 testified that they came to know about the offence of rape from the mouth of P.W.1. There was medical evidence that the victim was carrying pregnancy of 14 to 16 weeks. There was medical evidence to show that the victim was subjected to sexual intercourse. Though there was no signs of marks of violence, but accused taking advantage of the position of the victim that she was a minor had sexual intercourse with her and caused pregnancy. The learned Special Judge on thorough appreciation of the evidence, found the accused guilty of the charges.
14) Sri N. Sravan Kumar, learned counsel, in support of his contention, relied upon the decisions in Madho Ram and another vs. The State of U.P.1 and State of Maharashtra vs. Chandraprakash Kewalchand Jain2. With the above, he would seek to dismiss the criminal appeal.
15) In the light of the above rival contentions advanced and looking into the nature of allegations, firstly, this Court 1 (1973) 1 Supreme Court Cases 533 2 (1990) 1 Supreme Court Cases 550 13 would like to deal with as to whether the victim was of the age of 15 years as on the date of commission of offence. According to the evidence of P.W.1, she studied III Class. She used to work as servant-maid in the house of accused and by that time she was aged about 15 years. The victim was subjected a marathon cross examination and in the entire cross examination, the accused did not venture to dispute the age of the victim by suggesting in contra age. Absolutely, there is no defence before P.W.1 that she was not aged about 15 years. However, during cross examination of P.W.2, the accused disputed the age of the victim. According to P.W.2, she cannot say the date of birth of P.W.1 and she does not know the age of her daughter-P.W.1. She denied that the age of P.W.1 was not 15 years. As seen from the evidence of P.W.2, she is rustic witness and she was a thumb impressee. Even she cannot say her age. Accused did not probe the testimony of P.W.3, who is the father of victim, as regards the age of the victim. However, it is a fact that the prosecution examined P.W.7, Headmaster of M.P.U.P. School, Tirupathipalem, Ranasthalam Mandal and he deposed that at request of P.W.3, he issued study certificate of P.W.1. She studied III Class in their school. She issued Ex.P.8 study certificate basing on the school record. Though a marathon cross examination of P.W.7 was made, nothing could be elicited to disbelieve his testimony. According to his re-examination for 14 issuance of study certificate and transfer certificate admission register is the basis. He issued Ex.P.8 basing on admission register. It is to be noted that the entries in the admission register will be made basing on the information furnished by the parents. It is quite improbable to assume that anticipating a case, the parents of the victim furnished false age at the time of admission of P.W.1 into the school.
16) Leave apart all these things, the prosecution also examined P.W.13 who worked as Associate Professor in the Department of Forensic Medicine, Andhra Medical College, Visakhapatnam and he testified that on 18.10.2004 he received a requisition from Inspector of Police, Circle West, L &O, IV Town Police Station. He examined victim produced by WPC 2722 of IV Town L&O, Visakhapatnam. She was also accompanied by her mother. He examined P.W.1 physically, dentally and radio logically and opined that the above said individual is aged about 16 years. Ex.P.15 is the opinion with regard to age of the victim along with X-rays three in number. The contention of the accused before P.W.13 is that the opinion under Ex.P.15 was not enclosed with radiological report. It is to be noted that P.W.13 is no other than a competent person who was working as Associate Professor in the Department of Forensic Medicine. The Department of Forensic Medicine is undoubtedly competent to ascertain the age of the victim.
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17) Leave apart, the learned defence counsel elicited certain things in cross examination with regard to dental eruption sequence and in the light of the above, the prosecution re- examined him and he deposed categorically in re-examination that wisdom tooth starts from 17 years and would be completed at the age of 21 years. As per his report, wisdom tooth is not found place. According to the testimony of P.W.13, there is no presence of wisdom tooth of the victim which was supposed to be found placed after the age of 17 years. Though there was further cross examination of P.W.13 by the learned defence counsel, nothing could be elicited. So, the evidence of P.W.13 is helpful in my considered view to ascertain the age of victim. If the age of the victim is considered with reference to the evidence of P.W.7 coupled with Ex.P.8 and further the evidence of P.W.13 coupled with Ex.P.15 and his further clarification, absolutely, there was no discrepancy at all. The defence of the accused is totally vague in my considered view. In my considered view, the prosecution was able to establish the age of the victim categorically that she was aged about 15 years as on the date of commission of offence.
18) The allegation in the case of the prosecution is that the accused enticed away the minor girl and committed rape ultimately. The prosecution alleged the offence under Section 363 of IPC for kidnapping and enticing away the minor girl and 16 further the offence under Section 376 of IPC and further the sexual assault against the will as contemplated under Section 3(1)(xii) of SC and ST (POA) Act, 1989.
19) The basis for the registration of girl missing was the statement of P.W.2 recorded by Assistant Sub-Inspector of Police.
20) For better appreciation, it is pertinent to look into the substance of Ex.P.2.
21) As seen from Ex.P.2, the statement of P.W.2, allegations were such that the victim used to work as housemaid in the house of accused and accused used to move with the victim very closely and as they did not like the behavior of the accused, they shifted their residence. Even then, the accused used to come there and moved with the victim very closely, for which they chastised the accused. On 15.09.2004 victim was found missing and they suspected against the accused and asked him and then on 02.10.2004 accused brought the victim to the house of Duppada Parvathi and left there. Victim did not reveal the incident in spite of repeated questioning. Subsequently, again on 03.10.2004 accused came to the house of her sister i.e., Parvathi and spent some time and went away. Later, on 04.10.2004 when Parvathi went outside, the victim left the house by taking some clothes and she was found missing. Later, they went to the house of accused and accused pleaded innocence, as 17 such, they suspected the role of the accused. Basing on the above, FIR was registered initially under the head of "girl missing". Later, basing on the statement of victim after she was traced section of law was altered.
22) The offence of alleged rape and sexual assault and kidnapping was brought into the picture by virtue of the statement of victim under Ex.P.1.
23) Coming to the evidence of P.W.1 on material aspects, she deposed that she used to work as servant-maid in the house of accused and by then she was aged about 15 years. While accused was taking bath in the bathroom, he used to call her to come him and threatened her when she told him that she will inform the same to her mother. Subsequently, her father stopped working as watchman and shifted their family from VUDA colony to Isakathota area due to the said incident. Accused used to visit her at Isakathota. When she told to the accused that she will inform the thing to her parents, he stopped for some time for visiting. Thereafter their family shifted to Pothinamallayyapalem. As her father got employment as watchman at that area, she used to attend coolie work nearby the work site. The accused used to visit even at that place. Two and half years back i.e., five days prior to Vinayakachavithi, the accused asked her to leave her house and come to the complex. She left her parents house with one tula of gold, 1o tulas of 18 silver and cash of Rs.1,000/- and went to RTC complex, Visakhapatnam. Then she and accused boarded the bus which was going to Vizianagaram. Thereafter, they went on train which was going to Orissa. She and the accused got down the train at Orissa and both of them went in a rickshaw to go to a lodge. They were in the lodge for one day. Again they shifted to another lodge on the next day. From Orissa they came to Visakhapatnam and the accused left her at RTC complex at Visakhapatnam. She waited at RTC bus complex up to 7-00 p.m. Then accused came back to RTC complex with his wife. The accused and his wife left her at her mother's sister's house by name Parvathi. The accused came to her Junior maternal aunt's house four days thereafter. Again the accused asked her to come to the complex. She went to the complex. Then she and accused boarded the bus which was going to Srikakulam. After she travelled in the bus for one hour, she got down the bus by then the driver of a car wear the mask and he was ready with car. The said driver took her in the car along with another person wearing mask and she was travelling for one and half hour. Then the driver, the accused and another person took her to an up stair building after she got down the car. They supplied food for her. The accused also took food along with her. During night the accused left her there and went away. By 4-00 a.m., the accused left her at her Junior maternal aunt's house, after four days. Her Junior maternal aunt 19 took care of her during the said odd hours, since the accused left her there. Her Junior material aunt and her husband took her to her parents house. Then her father brought her to the police station. She did not tell the above facts earlier to anybody, but after the accused left her for last time she told the same to her Junior material aunt and also to her parents. Junior material aunt and her mother also came to police station. Ex.P.1 is the statement recorded by the police from her. The Doctor at KGH examined her subsequently. The Doctor informed to her junior maternal aunt that she was carrying. The police again recorded her statement. She belongs to S.C. Community.
24) Coming to the evidence of P.W.2 and P.W.3, the mother and father of victim respectively, they testified about the fact that victim used to work as servant-maid in the house of accused and the accused used to move with the victim closely. They shifted their residence and then after that the accused continued the same and ultimately they found that victim was missing. They suspected the role of the accused and asked him and he told that he saw the victim at Maddilapalem and RTC complex, etc. Their further evidence is that they came to know about the victim that she was raped by the accused. According to P.W.2, Ex.P.2 report was lodged by her.
25) The prosecution examined P.W.4, the younger sister of P.W.2 and she supported the case of the prosecution with 20 regard to the behavior of accused against the victim. Her evidence in substance is that her elder sister and her husband are working as Watchman and Servant-maid. She knows the accused through P.W.1. On one day her elder sister informed her that P.W.1 was missing. Then she went to the house of accused and enquired Prakasa Rao. Prakasa Rao threatened her. Two days thereafter accused brought P.W.1 to her house and handed over to her. Again the accused came to her house and talked with P.W.1 and took her from her house. By then she was not present. She informed the incident to her sister. Then they went to the house of accused. Accused firstly gave evasive replies and ultimately handed over P.W.1 again. Accused brought P.W.1 to her house 15 days thereafter. Complaint was given by her sister. Police examined her.
26) The prosecution examined P.W.5, the Kirana shop owner, to speak to the fact that one girl came to her on two occasions and telephoned to somebody. She was aged 15 years. She can identify the said girl if shown to her.
27) The prosecution examined P.W.6 to speak of certain attack made on the parents of the victim by some unknown persons and further he came to know about the incident i.e., accused behavior towards P.W.1 from her parents.
28) One of the allegations in the case of the prosecution is that the accused committed rape against the victim. To prove 21 the same, the prosecution relied upon the evidence of P.W.1 to P.W.4 and further the evidence of P.W.9, medical officer. According to the evidence of P.W.9, she worked as Assistant Professor in the Department of Obst. & Gynecology, Andhra Medical College, Visakhapatnam. On 16.10.2004 she gave the opinion on examining P.W.1 that she was pregnant. On 15.10.2004 she was referred from CMC, KGH, accompanied by her mother. After taking consent for examination, she sent her for investigations. She found that P.W.1 was pregnant of 14 to 16 weeks. She also collected the samples i.e., pubic hair, cervix swab, cervic smear, vaginal swab and nail clippings and she gave her final opinion. Ex.P.10 is preliminary opinion. Ex.P.11 is the final opinion.
29) Coming to the evidence of P.W.10, he was the person who examined the accused and according to him, there is nothing to suggest that the accused is incompetent to perform sexual intercourse.
30) The prosecution examined P.W.11, the Assistant Director, RFSL, Visakhapatnam, who examined the material objects and found that semen and spermatozoa was detected only on item No.3. Blood was detected only on item No.4. The origin of the semen detected on item No.3 and the origin of the blood detected on item No.4 could be determined and they are of 22 human origin but their blood group could not be established. Ex.P.13 is the report of RFSL.
31) The findings of P.W.13, the medical officer were not at all challenged during cross examination. The medical evidence is clear that victim was subjected to sexual intercourse and she was carrying the pregnancy of 14 to 16 weeks.
32) But the mere fact that the prosecution was able to establish that the victim was accustomed to sexual intercourse and she was carrying pregnancy of 14 to 16 weeks was not at all sufficient to prove the offence of rape against the accused. The prime evidence should be of the victim. Though in Ex.P.1 the victim alleged that she was subjected to rape by the accused which was the basis for alteration of FIR but when it comes to the evidence she did not testify that the accused had sexual intercourse with her. Her evidence was minute with regard to the manner in which she was enticed away by the accused. Though she claimed that she and accused stayed for some days in the lodge but she did not venture to depose that the accused had sexual intercourse with her against her will or consent. It is a fact that the victim was the minor, aged about 15 years, as on the date of alleged commission of offence. The evidence on record would reveal that she was a consenting party to go along with the accused. The evidence on record would also reveal that the accused enticed away the victim.
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33) Insofar as the allegations that the accused enticed away the victim, there was nothing to suspect the evidence of P.W.1. During the probing and marathon cross examination, nothing was elicited to disbelieve the testimony of P.W.1. P.W.2 and P.W.3 were not the witnesses to the occurrence of kidnapping. It is to be noted that as evident from the cross examination of P.W.1 though she deposed that she raised protest and tried to raise cries, etc., when she was staying along with the accused in the lodge but the thing is that she was a consenting party. However, she was a minor, aged about 15 years. When the accused was taking away the victim by enticing away and when she was a consenting party such consent cannot be taken as voluntary. P.W.1, who was aged about 15 years, was not capable of understanding the rationale in her act in going away along with the accused. The very offence under Section 363 of IPC is enticing away the minor girl from the lawful guardianship. In my considered view, the testimony of P.W.1 remained unshaken with regard to the fact that she accompanied the accused in two occasions. The defence of the accused during cross examination of P.W.1 is that on account of instigation of some other, she is deposing false. It is nothing but vague defence. At whose insistence P.W.1 was compelled to give false evidence was within the exclusive knowledge of the accused for 24 which he did not venture to suggest the name of the person who instigated P.W.1 to depose false against him.
34) Admittedly, it is a case where the alleged episode was started in the month of September, 2004. The parents of P.W.1 were moving for the victim and prior to that they had a strong objection about behavior of accused towards victim. The facts and circumstances are such that lodging of report by the parents of victim against the accused would involve the reputation and prestige of their family. In such circumstances, the mere non-reporting of the matter to the police when the victim was found missing on 15.09.2004 is not fatal to the case of the prosecution. The evidence on record would reveal that though the victim was traced on 02.10.2004 but what prompted P.W.2 to bring the matter to the notice of the police was the second episode of missing. Having regard to the nature of the allegations and looking into the backdrop Indian society, I am of the considered view that the delay in lodging the information to the police is not fatal to the case of the prosecution.
35) As evident from the evidence of D.W.1 she wanted to give a clean chit to the accused being his wife. According to D.W.2, he distributed wages to labourers supplied by him during 07.10.2004 and 09.10.2004 and he purchased some material from 05.10.2004 to 08.10.2004 and he filed Ex.D.3 wage register leaf, bills Ex.D.4 and Ex.D.5 and bank transactions under 25 Ex.D.6. By virtue of such evidence, his defence is that he was available at the house and there was no question of offence by him.
36) It is to be noted that there was no dispute that the victim used to work as servant-maid in the house of accused. When the evidence of P.W.1 to P.W.4 was very categorical and clear that on account of behavior pattern of the accused towards victim they shifted their residence to some other place, this portion of evidence of P.W.1 to P.W.4 was not at all challenged. The prosecution established categorically that the parents of victim stopped P.W.1 in working in the house of accused as servant-maid. This fact was not disputed by D.W.1 and D.W.2. As evident from the cross examination part of D.W.2, he was the proprietor of Swathi Insulations and his office is located in his house itself and he used to supply labour to small companies on commission basis. So, it is goes to show that simply because accused caused some transactions pertaining to his works, it does not mean that he did not entice away the victim. Absolutely, P.W.1 to P.W.3 has no reason to implicate the accused falsely. During the course of Section 313 of Cr.P.C. examination, the accused put forth a defence as parents of victim demanded for some money and he did not accept the same, he is implicated falsely. This part of defence was never suggested to P.W.2 and P.W.3. P.W.2 and P.W.3 denied that 26 they are deposing false. P.W.1 supported the case of the prosecution with regard to the allegations that she was enticed away by the accused in two episodes. This Court has no reason to disbelieve the evidence of P.W.1 insofar as the offence under Section 363 of IPC is concerned, but insofar as the allegations of rape under Section 376 of IPC are concerned, in the absence of evidence of P.W.1, it cannot be held to be proved. Ex.P.1 the statement of P.W.1 cannot be read in substantive evidence. The prosecution elicited minute facts according to the case through the mouth of P.W.1, but failed to elicit anything from the mouth of P.W.1 that she was committed rape by the accused. Though her chief examination was missing with regard to the allegations of rape, the prosecution did not seek any further clarification by way of re-examination. The evidence of P.W.2 and P.W.3 that victim informed them that accused committed rape is nothing but hearsay. In the absence of testimony of P.W.1 that accused had sexual intercourse with her, it is dangerous to sustain a conviction under Section 376 of IPC. Further when the prosecution did not elicit from the mouth of P.W.1 that she was subjected to rape by the accused, there is no question of sexual assault by the accused within the meaning of Section 3(1)(xii) of SC and ST (POA) Act, 1989.
37) As evident from the evidence of P.W.14, he registered the report as a case in Crime No.287 of 2004 under 27 the head of "girl missing". According to P.W.15, Sub Inspector of Police, after tracing of the victim and statement of P.W.1, he altered the section of law. P.W.16 was the Inspector of Police, who came to know about the registration of FIR and further alteration of FIR, addressed a letter to the superior authorities to appoint an investigating officer and accordingly P.W.17 was appointed as investigating officer as the allegations at the time of alteration of FIR attracts Section 3(1)(xii) of SC and ST (POA) Act, 1989. P.W.18 and P.W.19 were the successors of P.W.17.
38) The outcome of the investigation insofar as the fact that the accused enticed away P.W.1 in two episodes is on proper lines. In my considered view, the prosecution categorically established before the learned Special Judge that accused enticed away P.W.1, who was aged about 15 years, as on the date of commission of offence, from the lawful guardianship, which is punishable under Section 363 of IPC. The prosecution failed to establish the offence of rape under Section 376 of IPC and further the offence of sexual assault as contemplated under Section 3(1)(xii) of SC and ST (POA) Act, 1989.
39) As seen from the evidence, the learned Special Judge believed the case of the prosecution in all respects. It appears that the learned Special Judge did not look into the evidence of P.W.1 to ascertain as to whether the evidence of victim reveals 28 the commission of rape and sexual assault. The learned Special Judge did not look into the fact that the victim did not testify that the accused had sexual intercourse with her within the meaning of rape and further sexual assault as alleged.
40) Turning to the decision in Madho Ram's case (1 supra), the Hon'ble Supreme Court held that in a case under Sections 366 and 376 of IPC sole testimony of prosecutrix is sufficient and there is no need to insist for any corroboration.
41) Coming to the present case on hand, though the prosecution failed to establish the offence under Section 376 of IPC but the evidence of P.W.1 is quite satisfactory with regard to the fact that the accused enticed away her. P.W.2 to P.W.4 testified that the victim was traced from the custody of the accused. Insofar as the offence under Section 363 is concerned, her evidence has support from the evidence of P.W.2 to P.W.4.
42) Turning to the decision in Chandraprakash Kewalchand Jain's case (2 supra), it is a case of rape. The Hon'ble Supreme Court considering the evidence on record held that the evidence of prosecutrix should be judged in the backdrop of the particular fact situation in which she was placed. It was a case where the defence forwarded a theory that there is no resistance by the prosecutrix to the act of the accused. The facts of Chandraprakashkewalchand Jain's case (2 supra) are not at all favourable to the case of the prosecution in the absence of 29 victim testifying that the accused had sexual intercourse with her.
43) In the considered view of this Court, the learned Special Judge erroneously recorded conviction under Section 376 of IPC and Section 3(1)(xii) of SC and ST (POA) Act, 1989, though the victim did not speak of any sexual intercourse by the accused with her or any sexual assault with her by the accused. Hence, this Court is of the considered view that insofar as conviction and sentence of the accused under Section 363 of IPC is concerned, the judgment of the learned Special Judge is sustainable under law and facts and insofar as conviction under Section 376 of IPC and Section 3(1)(xii) of SC and ST (POA) Act, 1989, it is liable to be interfered with.
44) All these points answered accordingly.
45) In the result, the Criminal Appeal is allowed in part insofar as the conviction and sentence of the accused under Section 376 of IPC and Section 3(1)(xii) of SC and ST (POA) Act, 1989 is concerned, by setting aside the conviction and sentence imposed against the accused under Section 376 of IPC and Section 3(1)(xii) of SC and ST (POA) Act, 1989 and the appeal insofar as Section 363 of IPC is concerned, it is dismissed, confirming the conviction and sentence recorded by the learned Special Judge for the offence under Section 363 of IPC. The fine amount, if any, paid by the accused for the counts under Section 30 376 of IPC and Section 3(1)(xii) of SC and ST (POA) Act, 1989, shall be refunded to him after appeal time is over.
46) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 30.01.2024 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court.
47) The Registry is directed to forward the copy of the judgment along with original record to the trial Court on or before 30.01.2024.
Consequently, miscellaneous applications pending, if any, shall stand closed.
____________________________ JUSTICE A.V. RAVINDRA BABU Dt. 22.01.2024.
PGR 31 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.1557 OF 2010 Note:
The Registry is directed to forward the copy of the judgment along with original record to the trial Court on or before 30.01.2024.
Date: 22.01.2024 PGR