HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No. 1327 of 2003 DATE:12.03.2010 Between: Pettala Sadanandam … Petitioner and State of A.P. represented by Public Prosecutor, High Court of A.P., Hyderabad … Respondent HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No. 1327 of 2003 JUDGMENT: The petitioner herein-accused was tried by the learned I Additional Assistant Sessions Judge, Warangal, for the offences punishable under Sections 366-A and 376 IPC in S.C.No.363 of 2001. During the course of trial, on behalf of the prosecution, P.Ws.1 to 11 were examined and Exs.P.1 to P.9 were marked. On behalf of the defence, no oral or documentary evidence was adduced. Having considered the oral and documentary evidence, the trial court found the petitioner guilty of the offences punishable under Sections 363 and 376 IPC, and accordingly, convicted and sentenced him to undergo rigorous imprisonment for seven years and also to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a period of six months, on each count. Questioning the said judgment, the petitioner filed Crl.A.No.151 of 2001 on the file of the V Additional Sessions Judge, Warangal. The learned Sessions Judge, dismissed the appeal, by judgment dated 28.08.2003. Being aggrieved by the same, the petitioner preferred the present revision. 2. The case of the prosecution, in brief, is that P.W.1 is the mother and P.W.2 is the father of P.W.7 who is the victim in this case. The victim girl was studying 8th class and she was aged 13 years as on the date of the incident and her friend P.W.6 was studying 10th class. The victim girl-P.W.7 used to visit the house of P.W.6. The accused having developed lust towards the victim girl, proposed to marry her. On 24.11.2000 the accused instructed the victim girl to come to Bharat Café, which is situated at Kakatiya University Campus Cross Road. Having been influenced by his words, the victim girl went to Bharat Café, and from there the accused took her to Lord Satyanarayana Temple situated at Gudengutta where they exchanged garlands. On the same day, the accused took the victim girl to the house of his friend, L.W.8- Venkateswarlu, at Mancherial and stayed there. On the next day i.e. 25.11.2009 with the assistance of L.W.8, the accused took a room on rent in the house of L.W.7- Ramachandraiah and both the accused and the victim girl stayed there for three days and during that period the accused had sexual intercourse with the victim girl. After knowing the incident from P.W.5, P.W.1 lodged a complaint with the police, who registered the same as Crime No.198 of 2000 for the offence punishable under Section 366-A IPC. Having learnt about registration of the crime, the accused along with the victim girl surrendered before the police, K.U.C., on 29.11.2000. Subsequently, the accused and the victim girl were sent for medical examination. After completion of investigation, charge sheet was filed against the accused for the offences punishable under Sections 366-A and 376 IPC. The plea of the accused was of total denial. 3. Heard the learned counsel for the petitioner-accused and the learned Public Prosecutor for the respondent- State. 4. It is mainly contended by the learned counsel for the petitioner-accused that the said incident had happened only with the consent of the victim girl and there is absolutely no evidence to establish that the victim girl – P.W.7 was a minor as on the date of the incident. Even if the evidence of P.W.5, the doctor, who examined the victim girl, is accepted, the victim girl is aged about 14 to 16 years. According to him, if a girl of 16 years old goes with a person on her own volition and participates in sexual intercourse with him, it cannot be said that the person has committed offences punishable under Sections 363 and 376 IPC. In support of his contention, the learned counsel relied on a judgment of the Apex Court in S. Varadarajan V. State of Madras[1]. 5. On the other hand, the learned Public Prosecutor opposed the contentions of the learned counsel for the petitioner-accused and submitted that the courts below have given concurrent findings and rightly convicted and sentenced the accused as stated supra. Therefore, no interference is required by this Court. 6. In view of the above, it is to be seen, whether the victim girl was a minor as on the date of the offence. In this regard, it is apt to refer to the evidence of P.W.5, who examined the victim girl. He deposed that on 01.12.2000 the victim girl was referred to his hospital for the purpose of determining her age and after conducting all the required tests, he opined that she is aged about 14 to 16 years. Ex.P.5 certificate issued by him is on the basis of his physical examination of the victim girl. But, the said witness was not cross-examined by the defence. Therefore, his evidence with regard to the age of the victim girl can be taken into consideration. 7. If the age of the victim is taken into consideration, she is a minor as on the date of the offence, and as such, it shall be held that the petitioner has committed the offences punishable under Sections 363 and 376 IPC. But, what is to be seen is, whether the victim girl was capable of knowing as to what she was doing at the relevant point of time. 8. The victim girl-P.W.7 deposed that she knows the petitioner-accused and on 24.11.2000 he took her to Bharat Café situated at Kakatiya University and they boarded a bus at Bharat Café to go to Karimnagar. After reaching Karimnagar, the accused purchased two garlands and from there they went to the temple of lord Satyanarayana Swamy at Gudemgutta where they both exchanged the garlands and the accused tied a thali around her neck. Thereafter, they went to the house of the friend of the accused at Mancherial and on the next day i.e., 25.11.2000 they shifted to the house of one Vala Ramachandraiah in Mancherial and stayed there up to 28.11.2000 and during that period the accused had sexual intercourse with her. In cross-examination she categorically stated that she did not complain to anybody against the accused while she was traveling in the bus to Karimnagar or at Karimnagar or at the temple. She further stated that herself and the accused were at Mancherial for three days and she felt happy during that period. From the evidence of the victim-P.W.7, it is apparent that the victim girl is a consenting party and she was capable of knowing what she was doing at the relevant point of time. Simply because the victim is minor, it cannot be construed that the accused had committed the offence punishable under Section 363 IPC, in view of the decision of the Apex Court referred to above. 9. As rightly contended by the learned counsel for the petitioner, the judgment of the Apex Court relied on by him squarely applies to the facts of the case on hand. In the said case also, the victim was minor and the accused person was tried for the offence punishable under Section 363 IPC and while the courts below convicted and sentenced the accused for the said offence, the Apex Court found him not guilty of the said offence and accordingly acquitted him of the same holding that the victim was knowing as to what she was doing at the relevant point of time. 10. Following the ratio laid down by the Apex Court in the aforesaid case and in view of the foregoing discussion, this Court is of the view that the petitioner cannot be said to have committed the offence punishable under Section 363 of 376 IPC, and consequently, the offence punishable under Section 376 IPC cannot sustain. 11. Accordingly, the criminal revision case is allowed setting aside the conviction and sentence imposed against the petitioner in S.C.No.363 of 2001, by judgment dated 28.08.2003, by the I Additional Assistant Sessions Judge, Warangal, as confirmed by the learned V Additional Sessions Judge, Warangal, by judgment dated 28.08.2003, in Crl.A.No.151 of 2001 and the petitioner- accused is found not guilty of the offences punishable under Sections 363 and 376 of IPC and accordingly he is acquitted of the same. The fine amount, if any, paid by the petitioner shall be refunded to him. ______________________ GOPALA KRISHNA TAMADA 12th March, 2010 CBS HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No. 1327 of 2003 (Allowed ) Date:03-03-2010 CBS [1] AIR 1965 S.C.942