CRLRC/1863/2004 of Shaik Subhani Vs State of A.P. rep. by Public Prosecutor on 28 December 2012

ORDER:

This Criminal Revision Case is filed being aggrieved by thejudgment dated 15.10.2004, passed in Criminal Appeal No.293 of2003, on the file of V Additional District and Sessions Judge (FastTrack Court) Guntur, confirming the judgment dated 30.07.2003,passed in Sessions Case No.446 of 2002, on the file of PrincipalAssistant Sessions Judge, Tenali; wherein the learned PrincipalAssistant Sessions Judge, convicted the accused and sentenced himto suffer Rigorous Imprisonment for a period of 5 years and also to paya fine of Rs.2,000/- for the offence under Section 376 I.P.C. and alsosentenced him to undergo Rigorous Imprisonment for a period of twoyears and also to pay a fine of Rs.500/- in default, to suffer SimpleImprisonment for one month for the offence under Section 420 I.P.C.

2. The petitioner herein is the accused in Sessions Case No.446of 2002, before the trial Court, wherein he was charged for the offencespunishable under Sections 420 and 376 I.P.C. and the trial Court afterfull-fledged trial, found him guilty for the charges framed against him. Being aggrieved, he preferred Criminal Appeal No.293 of 2003,wherein the first appellate Court also confirmed the conviction andsentences imposed by the trial Court. Aggrieved by the same, thepresent Criminal Revision Case is filed by the petitioner contendingthat though the Courts below failed to appreciate the evidence onrecord, erroneously convicted him even though the evidence on recorddoes not disclose any ingredients for the offences under Sections 376and 420 I.P.C.; both the Courts below failed to appreciate the fact thatthe date of birth could have been proved by the prosecution byadducing the evidence from the competent authority. Therefore, theCourts below failed to appreciate that unless the age of PW.1 is proved by adducing cogent evidence, she cannot be treated as aminor and the charge of rape cannot be foisted against the petitioner.

3. The learned Public Prosecutor while supporting the judgment ofthe lower appellate Court urged for dismissal of the Criminal RevisionCase filed by the petitioner-accused.

4. Now the point for consideration is :Whether the impugned judgment of the lower appellateCourt dated 15.10.2004, passed in Criminal AppealNo.293 of 2003 is sustainable?

5. Before going into the merits of the case, it is very muchnecessary to refer the charge sheet averments, which, briefly, reads asfollows :

The victim girl by name [REDACTED], PW.1 while studying10[th] class in Taluk High School, Tenali, the accused, who is nephewof her father, used to follow her expressing his intention to marry herand also used to threaten her with dire consequences and that he willcommit suicide if she does not marry him and also expressed the sameto her father, PW.2. Accordingly, her father, PW.2 agreed to performtheir marriage and as such arranged their engagement ceremony on15.09.2000. Thereafter, the accused developed intimacy with PW.1and frequently used to visit her house in the absence of her parentsand continued his sexual relationship with her under the promise ofmarrying her and later when her parents expressed their intention toperform their marriage by fixing a date, the accused has shown his truecolours and declined to marry her. For which, she filed a complaintbefore the Police and the Police after registering the same as a case inCrime No.182 of 2001, referred the victim girl to the medicalexamination and after completion of the investigation, filed chargesheet before the trial Court.

6. Before the trial Court, as many as 11 witnesses were examinedas PWs.1 to 11 and got marked Exs.P-1 to P-12 on behalf of theprosecution. On behalf of the defence, DWs.1 and 2 were examinedand got marked Ex.D-1. PW.1 is the victim girl, PW.2 is the father ofthe victim girl, PW.3 is the Mosque elder, PW.4 is the Doctor whoexamined the victim girl and PW.5 is the doctor who examined theaccused, PWs.6 and 7 are the mediators and PW.8 is the grandmother of the victim, PW.9 is the Head Master of Taluk High School,Tenali, who issued date of birth certificate of the victim girl under Ex.P-10 and PWs.10 and 11 are the Police officials.

7. As seen from the record, the charge sheet was filed for theoffences punishable under Sections 376 and 420 I.P.C. and the trialCourt took cognizance of the same and framed charges accordingly. To prove the ingredients of the aforesaid offences, the evidence ofPWs.1, 4, 5, 7 and 8 is very vital. Basing upon the report lodged byPW.1 under Ex.P-1 dated 02.12.2001, the Sub-Inspector of Police,took up the investigation. Therefore, the evidence of PW.1 attachesany amount of significance while deciding the ingredients for theoffences under Sections 376 and 420 I.P.C. It is the case of theprosecution that the accused frequently used to meet PW.1 to believethat he is very much interested towards her and intended to marry her. It is also the case of the prosecution that the accused is related toPW.1 as nephew of PW.2. It is also the evidence of the prosecutionthat PW.1 having believed the accused, obliged herself for havingsexual intercourse with the accused more than 10 times, without theknowledge of her parents that too in their dwelling house. In thatbackground, let us see whether the conduct of the accused attracts tothe offences punishable under Sections 376 and 420 I.P.C.

8. PW.1 in unequivocal terms stated in her evidence that in thefirst instance the accused came to her while she was alone, committedrape on her and at that time she sustained some bleeding injuries in

her private parts and that she cleaned her private parts. It is also herevidence that their house is consisting of 5 portions and in one portionthey are staying. It is also her evidence that the house of the accusedis also opposite to her house and he frequently visited their house andwhenever he visits the house, he used to have sexual intercourse withher. The conduct of PW.1 in obliging the accused sexually without anyresistance from the day one of her first intimacy can be said asvoluntary. PW.4, the doctor, who examined PW.1, stated that she didnot found any external injuries on the body of PW.1. Moreover, PW.4certified in Ex.P-3 that PW.1 is habituated for sexual intercourse. If thatbe the positive medical evidence, it can be said without any slightestdoubt that PW.1 is mentally matured and she was habituated forregular sexual intercourse. If really, the victim girl was subjected tosexual intercourse for 10 times, as stated by her, the evidence of PW.4could be something different; but whereas PW.4 positively assertedand found that PW.1 is habituated to regular sexual intercourse. It isalso ruled out in the medical evidence that the spermatozoa was notfound on the private parts of PW.1, at the time of her examination. Even the Investigating Officer did not state the date of the alleged firstrape committed by the accused against PW.1; Ex.P-1 is also silent onthat score. Except PW.1 no other witnesses were examined to provethe close intimacy of sexual relationship between PW.1 and theaccused. The later part of the cross-examination of PW.1 does not suither evidence in her chief-examination. The reason being that in thefirst instance, she stated that she obliged the accused for sexualintercourse for more than 10 times but whereas to her later part ofevidence, strangely, she stated that she obliged him for sexualintercourse as he threatened her with dire consequences. Thatevidence, in my honest view, cannot be believed under any stretch ofimagination. When the prosecutrix herself stated that she is aconsenting party and allowed the accused for repeated sexualintercourse, during the absence of her parents in her house, it cannot be said that the act committed by the accused is rape in the broadmeaning of ‘Rape’ under Section 376 of I.P.C. Furthermore, theprosecution failed to prove that PW.1 was minor at the time of thealleged incident. In that view of the matter, the prosecution failed toprove the guilt of the accused for the offence under Section 376 I.P.C. With regard to the offence under Section 420 I.P.C., none of thewitnesses have deposed with any authenticated evidence that therewas an engagement between the accused and PW.1 prior to thealleged act of rape. Even for argument sake, if the evidence of theprosecution is true that there was an engagement, the conduct of PW.1allowing the accused for sexual intercourse continuously for couple ofmonths, in my view, is nothing but an afterthought introduced to suit theconvenience of the prosecution. Therefore, in the totality of thecircumstances of the case, the accused cheated PW.1 under the guiseof marrying her can not be believed and there is no authenticated proofon that score also.

9. Having regard to the facts and circumstances of the case andalso the evidence on record, the prosecution failed to prove the guilt ofthe accused for the offences under Sections 376 and 420 I.P.C. andboth the Courts below have not appreciated the evidence on record, inright perspective and came to an erroneous conclusion whileconvicting the accused. Therefore, the impugned judgment of the firstappellate Court is not sustainable and accordingly, the same is liableto be set-aside.

In the result, the Criminal Appeal is allowed setting aside theconviction and sentence imposed by the first appellate Court inCriminal Appeal No.293 of 2003. Bail bonds of the accused, if any,shall stand cancelled. The fine amount, if any, paid by the accusedshall be refunded to him on his filing of petition before the trial Court.

Date:28-12-2012.Dsh

_______________

K.S. APPA RAO, J

HON’BLE SRI JUSTICE K.S. APPA RAO

DSH

CRIMINAL REVISION CASE No.1863 OF 2004

December 28, 2012