CRLRC/1675/2003 of Katikireddi Gangaraju, A1 Vs The State of A.P., Rep by Public Prosecutor on 29 December 2009

ORDER:

The Criminal Revision Case, under Sections 397 and 401of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”),is directed against the judgment, dated 30.09.2003, inCrl.A.No.205 of 2002, on the file of the learned VI AdditionalSessions Judge, Fast Track Court, East Godavari District,Rajahmundry, in confirming the conviction of Accused No.1 ofthe offence punishable under Section 376 of the Indian PenalCode, 1860 (for short, “I.P.C.”), but reducing sentence fromRigorous Imprisonment for seven years to five years asrecorded by the learned Assistant Sessions Judge, Razole, inSessions Case No.320 of 2001, vide judgment, dated26.08.2002.

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

About four months prior to lodging of Ex.P1-Report, dated23.07.1999, one day when P.W.1-victim girl was alone presentin the house, Accused No.1 took her to his cattle shed andmade to exchange the garlands and induced her to believe thattheir marriage has taken place. Then, they both had a sexualintercourse and they continued the sexual intercourse wheneverthey got a chance. Two months thereafter, P.W.1 missed her monthly periods and the same was reported to Accused No.1.Thereupon, all the accused supplied some pills to P.W.1 forconsumption so as to avoid the pregnancy and also requestedher not to disclose the incident to anybody. While the parents ofP.W.1 noticed that P.W.1 was taking some pills, theyquestioned her. Then she reported the entire incident to herparents. Then the matter was referred to the Panchayat. Ontwo occasions, two Panchayats were held. In the secondPanchayat, Accused No.1 refused to marry her as promised byhim. Therefore, P.W.1 lodged Ex.P1-complaint on 23.07.1999. The police registered the case and investigated into it. Thepolice observed the scene of occurrence and prepared a roughsketch. P.W.1 was referred to Government Hospital, Razole, formedical examination. Thereafter, she was sent to GovernmentHospital, Kakinada, for determination of her age. On 26.07.1999at about 4.00 p.m., the police arrested Accused No.3 atTatipaka center and sent him to Court for judicial remand. Whereas, the other accused surrendered themselves beforeCourt and they were released on bail by District Court on19.08.1999. Accused No.1 was sent for medical examinationfor potency test. After completion of investigation, the policefiled the charge sheet against all the accused.

3. When the charges under Sections 376 and 493 I.P.C.against Accused No.1 and 315 I.P.C. against all the accusedwere framed, read over and explained to the accused in Telugu,they pleaded not guilty and claimed to be tried.

4. To substantiate the charges, the prosecution examinedP.Ws.1 to 13 and got marked Exs.P1 to P10.

5. After closure of the prosecution evidence, the accusedwere examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in theevidence of prosecution witnesses. They denied the same. Onbehalf of the accused, no oral evidence was adduced exceptmarking Exs.D1 to D7.

6. The trial Court, after considering the evidence on record,came to the conclusion that P.W.1 was a minor, that she wassubjected to rape and became pregnant, that the pregnancy wascaused by Accused No.1 alone and none else, that as P.W.1was a minor girl, Accused No.1 had a sexual intercourse withher consent does not arise and accordingly, Accused No.1 wasconvicted and sentenced as stated above while acquittingAccused Nos.2 to 5 of the offences with which they werecharged. On appeal, while confirming the conviction, thesentence was reduced from seven years to five years whilemaintaining fine. Challenging the same, the present CriminalRevision Case is filed.

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

8. Learned Senior Counsel appearing for the petitionerherein contended that the solitary testimony of P.W.1 cannot beput in the category of wholly reliable; that the prosecution failedto establish that Accused No.1 alone was responsible forcausing pregnancy to P.W.1; that the recitals in Ex.P1-complaint would go to show that Accused No.1 allegedly had asexual intercourse about four months prior to the giving ofEx.P1-report, but at that time, P.W.1 was pregnant of sixmonths; that therefore, the pregnancy is not shown to havebeen caused by Accused No.1 alone, and therefore, he prays to set aside the impugned judgment.

9. On the other hand, the learned counsel representing thelearned Public Prosecutor opposed the same on the ground thatthe concurrent findings of the two Courts below need not beinterfered with in view of the fact that the findings are basedupon proper appreciation of evidence on record; that P.W.1 hasno grouse or enmity against Accused No.1 to foist a false caseof this nature affecting her character; that her evidence is fullyin support of prosecution evidence; that P.W.1 was minor girli.e., less than 15 years of age on the date of commission ofoffence, and hence, she prays to dismiss the Criminal RevisionCase.

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, orimproper, ordinarily this Court will not interfere with theconcurrent findings of the trial Court or to reappreciate theevidence sitting as if in an Appeal. To test whether the findingsare correct or not, it is necessary to refer to the evidenceadduced by the prosecution.

11. P.W.1 is the victim girl in this case. She has categoricallystated that about four months prior to lodging of Ex.P1-complaint, when P.W.1 was present alone in her house,Accused No.1 came there and took her to his cattle shed andmade her believe that he would marry her and made toexchange the garlands and induced her to believe that theirmarriage has taken place. Then, P.W.1 gave her consent tohave a sexual intercourse with Accused No.1. Thereafter,whenever there was chance, they used to meet together to have

a sexual intercourse. Some time later, when P.W.1 missed hermonthly periods, she informed the same to Accused No.1. Onthat, Accused No.1 along with the other accused gave somepills to her so as to terminate her pregnancy. While P.W.1 wastaking pills, her parents observed it and on questioning thesame, P.W.1 reported the entire incident to her parents, P.Ws.2and 3. Then, they raised dispute before P.Ws.4 to 7, who areelders of the village, but the accused did not attend thePanchayat held in the first instance.

12. The evidence of P.Ws.2 and 3 would go to show that allthe accused came to the house of P.W.1 and offeredRs.25,000/- for termination of her pregnancy and to forgetAccused No.1 for ever, for which the parents of P.W.1 did notagree. Therefore, P.Ws.2 and 3 raised a second Panchayatwith the same elders. In the second Panchayat, the accusedabused P.W.1 and her family members and the accused refusedto take P.W.1 in marriage with Accused No.1.

13. Section 376 I.P.C. reads as follows:

“Punishment for rape:

(1) Whoever, except in the cases provided forby sub-section (2), commits rape shall be punishedwith imprisonment of either description for a termwhich shall not be less than seven years but whichmay be for life or for a term which may extend to tenyears and shall be liable to fine unless the womanraped is his own wife and is not under twelve years ofage, in which case, he shall be punished withimprisonment of either description for a term whichmay extend to two years or with fine or with both:

Provided that the Court may, for adequate andspecial reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of lessthan seven years.”

14. The question of consent for sexual intercourse does notarise in case when the girl is less than 16 years. Now thequestion is whether Accused No.1 caused pregnancy to P.W.1or not?

15. The entire case rests upon the solitary testimony ofP.W.1. When the evidence rests upon solitary testimony, itmust be unimpeachable, true and trustworthy. Considering thenature of offence, it will be held in secrecy. There may not beany eye witness to the incident. Therefore, the evidence ofP.W.1 alone is sufficient to base a conviction, provided herevidence was put in the category of wholly reliable. Afterlengthy cross-examination, nothing has been elicited to discreditthe testimony of P.W.1 as to why she has to implicate AccusedNo.1 alone falsely leaving the real person who allegedly causedthe pregnancy.

16. It is not in dispute that P.W.9, the doctor who examinedP.W.1 after lodging of Ex.P1-complaint, gave opinion that P.W.1was having six months pregnancy. Now the question is whetherwho caused that pregnancy? According to the evidence ofP.W.1, Accused No.1 alone caused the pregnancy. Though it issuggested that P.W.1 was having illicit contacts with severalpersons, but the same is not substantiated with any otherevidence. There is no prior enmity between Accused No.1 andP.Ws.1 to 3. Therefore, in such circumstances, P.Ws.2 and 3would not venture to raise a dispute before the elders statingthat Accused No.1 alone caused pregnancy to P.W.1 becauseof their sexual intercourse. There must be some bitter enmityfor P.W.1 to foist a false case against Accused No.1. Such evidence is lacking. There is absolutely no reason to disbelievethe evidence of P.W.1 on this aspect.

17. Further, the parents of P.W.1 raised two Panchayatsbefore P.Ws.4 to 7. They are totally independent witnesses.They have also no grouse or enmity against Accused No.1 soas to implicate him falsely leaving the real assailants. Theirevidence would clearly go to show that they held the Panchayatas P.W.1 was subjected to sexual intercourse by Accused No.1and he caused the pregnancy to P.W.1. Though Accused No.1did not attend the first Panchayat, but in the second Panchayat,all the accused refused to perform the marriage of AccusedNo.1 with P.W.1. Further, immediately after the first Panchayat,all the accused went to the house of P.Ws.2 and 3 and offeredan amount of Rs.25,000/- for the purpose of termination ofpregnancy of P.W.1 and also to forget Accused No.1 for ever.So, these circumstances would clearly go to infer that thesexual assault on P.W.1 was committed by Accused No.1 aloneand none else.

18. Coming to the evidence of the age of P.W.1, both theCourts below placed reliance on the evidence of P.W.11, whowas the then Head Master of the M.P.P. Elementary School,Pedapatnamlanka, wherein P.W.1 studied. As per Ex.P7, entryin Page No.28 Sl.No.1474 of Register of Admissions of M.P.P.Elementary School, Pedapatnamlanka, shows that the date ofbirth of P.W.1 is 02.01.1987. P.W.9 has given the AgeCertificate of P.W.1, dated 26.07.1999, which is marked asEx.P3, showing the age of P.W.1 as 15 years. Similarly, theStudy Certificate, dated 21.06.1999, issued by P.W.11, which ismarked as Ex.P6, would go to show that P.W.1 was minor as onthe date of commission of offence i.e., less than 16 years of age. Similarly, the evidence of P.Ws.2 and 3 would go to showthat P.W.1 was minor. So, all these circumstances coupledwith the evidence of P.W.11 would clearly go to show thatP.W.1 was minor aged less than 16 years of age prior to date ofthe incident. Therefore, there is ample evidence which wouldestablish that P.W.1 was minor by the date of the incident.

19. Though the contention of the learned Senior Counselappearing for the petitioner herein that there was somediscrepancy that Accused No.1 allegedly had a sexualintercourse with P.W.1 about four months prior to the giving ofEx.P1-report, at the same time P.W.1 was pregnant of sixmonths according to P.W.10. That discrepancy is not seriousdiscrepancy to believe the prosecution case, because it ismentioned in Ex.P1 that four months prior to lodging Ex.P1-complaint, P.W.1 had a sexual intercourse with Accused No.1on the premise that he would marry her. Therefore, thatdiscrepancy would not go to the root of the prosecution case.

20. None of the findings is shown to be incorrect or illegal. The findings are based upon proper appreciation of the evidenceon record. Therefore, there are absolutely no grounds tointerfere with the same. Hence, the Criminal Revision Case isdevoid of merit and is liable to be dismissed.

21. Accordingly, the Criminal Revision Case is dismissedconfirming the judgment, dated 30.09.2003, in Crl.A.No.205 of2002, on the file of the learned VI Additional Sessions Judge,Fast Track Court, East Godavari District, Rajahmundry.

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(K.C. BHANU, J)

Date: 29[th] December, 2009

KL