Y. Srinivasa Rao vs State of Andhra Pradesh

The accused-appellant was prosecuted in the Court of the Assistant Sessions Judge, Hyderabad in Sessions Cases No. 68 of 1990, In all four charges were framed against the accused-appellant. They were Sections 365, 366-A, 342 and 328, I.P.C. But at the time of trial it was for the first time the prosecutrix disclosed that the accused-appellant had committed sexual intercourse with her and therefore an additional charge was framed against the accused-appellant punishable u/s 376, I.P.C. The accused-appellant was given an opportunity to cross-examine the witness on additional charge. On evidence, the learned Assistant Sessions Judge found the accused-appellant guilty of the offence punishable under Sections 366-A and 376, I.P.C., only and therefore proceeded to convict the accused-appellant under the aforesaid sections and sentenced to suffer R.I. for Ten (10) years on each count and to pay a fine of Rs. 1000/- on each count in default to suffer S.I. for four months under each count. The substantive sentences of imprisonment were ordered to run concurrently. The learned Sessions Judge acquitted the accused of the charges under Sections 328, 341 and 365, I.P.C.

Being aggrieved by the aforesaid order of conviction and sentences, the present appeal has been filed.

In order to connect the accused with the offence, the prosecution examined 12 witnesses. They also produced certain documents and they were marked as Exs. P-1 to P. 9. The accused-appellant also examined one defence witness as D.W. 1 and produced certain documents. They were marked as Exs. D-1 and D-2.

P.W. 1 happened to be the mother of the prosecutrix, who had filed the missing report in respect of her daughter Naga Mahitha, when she notice that her daughter did not return home up to 2-00 p.m. on the date of incident. On the strength of Ex. P-1/missing report, the crime was registered as a missing case and the investigation was started. During investigation, the accused-appellant and the prosecutrix were traced out by the Investigating Officer at Vinukonda village on 22-1-1989. P.W. 10, the Circle Inspector of Police, took the accused-appellant into custody and the custody of the girl, the prosecutrix was handed over to her parents. On the same day he recorded the statements P.Ws. 1 to 3 and other material witnesses. Thereafter, he transferred the case to Panjagutta Police Station on the point of jurisdiction.

It can be seen from the evidence of P.W. 10 that before transferring the case, more than 80% of the investigation was completed by him. P.W. 12, the S.I. of Police, after completing formalities, filed the charge sheet.

In order to establish the fact that the prosecutrix was below the age of 18 years on the date of incident. The prosecution did not take any trouble to produce the positive evidence on record in respect of the age of the prosecutrix. They have simply led the evidence of the Principal, St. Patric Shool, Khairatabad, Hyderabad. As per the version of P.W. 1 that the prosecutrix was studying in 8th Standard on the date of incident whereas P.W. 7, the Principal of St. Patric School, has categorically stated in his evidence that there is no 8th Standard in his School. The School gives education to the children only up to 7th Standard. P.W. 7 further stated that the prosecutrix studied in his School only up to the year 1988 and thereafter she discontinued to attend the School. P.W. 7 further stated in his evidence that the prosecutrix studied in his School in 5th, 6th and 7th Standards. While joining the School, the prosecutrix had produced the School Leaving Certificate from the earlier school where she had studied up to 4th standard. The said Transfer Certificate was not produced by P.W. 7. The Transfer Certificate, which is produced by P.W. 7, is in respect of his School which shows that the date of birth of the prosecutrix was 4-12-1975. As a matter of fact, the prosecution ought to have led the evidence of the Principal of the School where the prosecutrix was first admitted and he ought to have been called upon to prove and produce before him in respect of the age of the prosecutrix when she was admitted in the School for the first time. That would have been a proper evidence on the point of age of the prosecutrix. It can also be seen from entire record that the prosecutrix was not sent to the Government Hospital for carrying out the ossification test in order to establish the age of the prosecutrix on the date of offence.

It appears from the evidence P.W. 1 that she does not speak anything about the age of the prosecutrix whereas P.W. 2, the father of the prosecutrix has stated that his daughter i.e., the prosecutrix, was aged about 13 years on the date of the offence. P.W. 2 has not produced any document to show that the prosecutrix was born on a particular date. Considering the evidence of the prosecution on the point of the age of the prosecutrix, I hold that the prosecution was totally negligent in establishing the age of the prosecutrix as to be below the age of 18 Years on the date of the incident. Thus, I hold that the prosecution has not established the age of the prosecutrix.

It appears from the evidence of P.W 10, the Police Officer, who had gone in search of the prosecutrix, that after he went to the village named Vinukonda to the house of Annapurnamma, he knocked the door, the prosecutrix herself opened the door and the accused-appellant was also seen in the said house. When the prosecutrix was able to come out of the house by opening the door, the conduct of the prosecutrix shows that she was not taken by the accused-appellant forcibly. On the contrary, it proves the fact that the prosecutrix had accompanied the accused-appellant on her own accord.

The prosecution has examined P.W. 3, who happened to be the neighbour of P.W. 1. She has stated in her evidence that the prosecutrix herself locked the door and key was handed over by the prosecutrix to P.W. 4. This conduct of the prosecutrix proves the fact that she left her own house without any force being exhorted by the accused-appellant.

Once it is held that the prosecution was not able to prove that the prosecutrix was aged below 18 years and by circumstances it is established that the prosecutrix left her house alone with the accused-appellant on her own accord, no offence punishable u/s 366-A, I.P.C., against the accused-appellant is disclosed.

On the point of sexual intercourse committed by the accused-appellant against the prosecutrix against her will and without her consent, the prosecution led the evidence of the prosecutrix herself, who deposed for the first time in the Court that during her stay at Vinukonda the accused-appellant had committed sexual act with her against her will and without her consent. The non-disclosure of such a heinous act by the accused-appellant upon the prosecutrix would go to show that the case is made out against the accused after due deliberation and afterthought.

When the prosecutrix made complaint to the Court that she was raped by the accused-appellant after lapse of two years the prosecutrix was sent for medical examination. The prosecutrix was examined by the Doctor, who has opined that no positive opinion can be given regarding the forcible act committed with the prosecutrix. The Doctor further gave evidence that there were old tares of hymen. Under such circumstances, I hold that no offence is disclosed against the accused-appellant punishable u/s 376, I.P.C. Therefore, I hold that the order of conviction and sentence recorded by the learned Sessions Judge is bad in law and therefore it has got to be set aside.

I therefore, allow the appeal and acquit the accused-appellant of all the charges. The bail bond executed by the accused-appellant is hereby cancelled. The fine amount, if paid, shall be refunded to the accused-appellant.

Appeal allowed.