CRLRC/1840/2003 of Bollem Ranganayakulu Vs The State of A.P., Rep by its Public Prosecutor on 29 December 2009

ORDER:

The Criminal Revision Case, under Sections 397 and 401 ofthe Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), isdirected against the judgment, dated 17.11.2003, in Crl.A.No.16 of2002, on the file of the learned I Additional Sessions Judge, atOngole, Prakasam District, whereunder and whereby theconviction recorded against the petitioner/Accused No. of theoffence punishable under Section 366A of the Indian Penal Code,1860 (for short, “I.P.C.”), and sentence to undergo RigorousImprisonment for a period of three years and to pay fine ofRs.500/- in default to suffer simple imprisonment for a period ofone month, as imposed by the trial Court in Sessions Case No.446of 1999, on the file of the learned Assistant Sessions Judge,Markapur, vide judgment, dated 04.02.2002, were confirmed.

2. Brief facts, that are necessary for disposal of the presentCriminal Revision Case, may be stated as follows:

P.W.1, who is victim, studied up to 10[th] class. AccusedNo.1 used to go after P.W.1 expressing his willingness to marryher. On 23.03.1997 at about 4.00 p.m., having informed to herparents, P.W.1 went to her land to fetch green grass, but she didnot return even after the sunset. Her parents searched for her, buther whereabouts were not known. Thereafter, father of P.W.1presented a report on 29.07.1997 to police, who registered a caseas in Crime No.26 of 1997 for the offence under Section 366 readwith 109 I.P.C. and took up the investigation. P.W.8-InvestigatingOfficer inspected the scene of occurrence and examined the witnesses and recorded their statements. Accused Nos.1 and 2were found to be absconding from the village since the date ofoccurrence. On 05.08.1997 at about 10.00 a.m., P.W.1surrendered before P.W.8 and she informed about the sequence ofthe events namely Accused No.1 kidnapping her, using criminalforce and forcibly committed rape on her against her will. P.W.1was sent to the Medical Officer, Government Hospital, Giddalur,for medical examination. The seminal swabs of P.W.1 were sentto the Forensic Science Laboratory, Vijayawada. P.W.6, theMedical Officer who examined P.W.1, opined that there was anevidence of sexual intercourse. Accused were arrested later andsent to remand and after completion of investigation, the policefiled the charge sheet.

3. The trial Court framed charges for the offences underSections 366A and 376 I.P.C. against Accused No.1, and Sections366A read with 109 I.P.C. against Accused No.2, and when thesame were read over and explained to the accused, they pleadednot guilty and claimed to be tried.

4. To substantiate its case, the prosecution examined P.Ws.1to 7 and got marked Exs.P1 to P8.

5. After closure of the prosecution evidence, the accused wereexamined under Section 313 Cr.P.C. with reference to theincriminating circumstances found against them in the evidence ofprosecution witnesses. They denied the same. On behalf of theaccused, D.W.1 was examined and Ex.D1 was marked.

6. The trial Court, after considering the evidence on record,found Accused No.1 guilty of the offence punishable under Section366A I.P.C. and accordingly, he was convicted and sentenced asstated above. With regard to the other charges, the accused were acquitted. On appeal by A.1, the said conviction and sentencewere confirmed by the appellate court. Challenging the same, thepresent Criminal Revision Case is filed.

7. Now the point for determination is whether the judgments ofthe two Courts below are correct, legal and proper?

8. Learned counsel appearing for the petitioner hereincontended that even prior to the incident, P.W.1 was having asexual intercourse with Accused No.1; that P.W.1 was not shownto be less than 18 years of age prior to the date of incident; thatthere was a delay of 10 days in lodging Ex.P4-complaint; that theingredients of the offence under Section 366A I.P.C. have not beenattracted, and therefore, he prays to set aside the conviction andsentence recorded by the courts below.

9. On the other hand, the learned counsel representing thelearned Public Prosecutor contended that none of the findings isshown to be incorrect, illegal or improper; that the evidence ofP.W.1 would clearly go to show that she was kidnapped byAccused No.1 and rape was committed on her; that in the absenceof any incorrect finding, the judgments under challenge need nointerference in this revision, and hence, she prays to dismiss theCriminal Revision Case.

10. There cannot be any dispute that the revisional powers ofthis Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be incorrect, illegal, or improper,ordinarily this Court will not interfere with the concurrent findingsof the Courts below or to reappreciate the evidence sitting as if inan Appeal. A finding can be said to be perverse if it is not basedupon proper appreciation of the evidence on record.

11. Section 366A I.P.C. reads as follows:

“Procuration of minor girl:

Whoever, by any means whatsoever, induces anyminor girl under the age of eighteen years to go from anyplace or to do any act with intent that such girl may be, orknowing that it is likely that she will be, forced orseduced to illicit intercourse with another person shallbe, punishable with imprisonment which may extend toten years, and shall also be liable to fine.”

12. P.W.2, who is no other than the mother of P.W.1, andP.W.3, who is no other than the senior paternal uncle of P.W.1,searched for P.W.1 as she did not come to the house. Theirevidence is very clear that P.W.1 left the house to their land forfetching green grass, and even after sunset, she did not return. Without knowing anything, it may not be possible for the father ofP.W.1 to rush to the Police Station to lodge a complaint. There isa quite possibility for them to search for P.W.1 in several placesincluding relatives’ houses in and around the village. So, the delayof 10 days in lodging Ex.P4-complaint is not shown to have beentaken with a view to implicate Accused No.1 falsely. There cannotbe any dispute that mere delay in lodging Ex.P4-complaint by itselfis not a ground to reject the prosecution case, if it is otherwisereliable and acceptable. The evidence of P.W.1 is verycategorical that Accused No.1 kidnapped her and had taken toseveral places and he had a sexual intercourse with her. Theremust be some reason for P.W.1 to foist a false case of this natureagainst Accused No.1. There is no such reason or animosity forP.W.1 to foist a false case of this nature against Accused No.1. The evidence of P.W.1 can be put in the category of wholly reliablewitness.

13. If P.W.1 was a minor as on the date of commission of theoffence, the question of consent does not arise. Coming to the

age of P.W.1, P.W.6, the doctor who examined P.W.1, opined thatshe was aged about 17 years. But in Ex.P6, which is the attestedtrue copy of the Secondary School Certificate of P.W.1, dated01.01.1997, issued by the Head Master of the Z.P. High School,Racherla, the date of birth of P.W.1 was shown as 06.07.1980. The genuineness and correctness of Ex.P6 is not under challenge.Therefore, both the Courts below placed an implicit reliance on therecitals in Ex.P6. Simply because the doctor had stated thatP.W.1 was aged about 17 years at the time of incident, it cannotbe accepted as gospel truth. Two years plus or minus to the agedetermined by doctor can be taken into consideration. In theabsence of other evidence, the benefit of plus two years can begiven to the age as estimated by the doctor. If there is no othercorroboratory evidence available on record, two years plus orminus of the age determined by P.W.6 can be taken to corroboratethe other evidence on record. The medical evidence coupled withthe recitals in Ex.P6, it is clear that P.W.1 was minor by the dateof incident. P.W.1. was taken to several places and she wassubjected to sexual intercourse by Accused No.1 without her will. No doubt, the trial Court has acquitted Accused No.1 of theoffence punishable under Section 376 I.P.C., because the medicalevidence does not corroborate with the ocular testimony. Therefore, the trial Court rightly placed reliance on the evidence ofP.W.1.

14. The evidence of P.Ws.2, 3 and 5 would clearly go to showthat P.W.1 was not present in the village for about three months.

15. The evidence of P.W.7-Inspector of Police would clearly goto show that three months after lodging of Ex.P4-complaint, P.W.1was traced and she surrendered herself before P.W.7. P.W.7 sentP.W.1 to the Medical Officer, Government Hospital, Giddalur, formedical examination. Therefore, the trial Court, after elaborate consideration of evidence on record, rightly found that P.W.1 wasminor on the date of the commission of offence and she waskidnapped by Accused No.1 with an intention to commit rape onher, and the said evidence was confirmed by the Appellate Court. None of the findings is shown to be perverse or incorrect. Therefore, there are absolutely no grounds to interfere with theconviction recorded by the trial Court as confirmed by theAppellate Court.

16. With regard to the sentence, the incident is alleged to havetaken place about 13 years back. The petitioner herein was agedabout 26 years as on the date of commission of offence. After theincident, it is stated that the petitioner herein married anotherwoman. Similarly, P.W.1 also married another person and theyare living with their respective family members. Considering thisaspect, a lenient view can be taken with regard to the sentence. Hence, the sentence of Rigorous Imprisonment for a period ofthree (3) years can be reduced to one (1) year.

17. In the result, the conviction recorded by the learnedAssistant Sessions Judge, Markapur, in Sessions Case No.446 of1999, vide judgment, dated 04.02.2002, against Accused No.1 ofthe offence punishable under Section 366A I.P.C. is confirmed, butthe sentence is reduced from Rigorous Imprisonment of three (3)years to Rigorous Imprisonment for one (1) year, while maintainingthe fine amount with default clause. Period of remand, if any,undergone by Accused No.1 during the course of investigation,trial and after conviction shall be given set off under Section 428 Cr.P.C.

18. With the above modification in sentence, the CriminalRevision Case is dismissed.

Date: 29[th] December, 2009

KL

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(K.C. BHANU, J)