THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.106 of 2006 BETWEEEN: G.Santosh … Appellant AND The State of A.P. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.106 of 2006 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 376 I.P.C. and was sentenced to rigorous imprisonment of seven years and fine of Rs.100/-. Questioning the same, the accused filed this appeal. The accused and PW3 are neighbours. PWs 1 and 2 are parents of PW3. PW3 studied 8th standard in ZP High School for girls. It is alleged that in January 2004, when the victim girl PW3, aged 14 years, was cleaning front yard of their house at Sadar Bazaar, Bolarum, the accused took her to the side of latrine and committed rape on her using force and without her consent and that the accused repeated the said act on two other occasions subsequently. After coming to know about pregnancy of PW3, her parents questioned her and gave report to the Police who investigated and filed charge sheet against the accused. During investigation, foetus of PW3 was extracted by aborting her pregnancy and DNA of the foetus was collected. Blood samples of PW3 as well as the accused were also collected and all of them were sent to CDFD (Centre for DNA Finger Printing and Diagnosis), Nacharam, Hyderabad. After comparison of DNA of the foetus and DNA of PW3 and the accused, it was opined that PW3 was biological mother of the foetus and the accused was biological father of the foetus extracted from PW3. Ex.P10 is the report to that effect given by PW5. Even though PWs 1 to 3 turned hostile to the prosecution during trial in the lower Court, the lower Court found the accused guilty under Section 376 I.P.C. on the ground that the accused had sexual intercourse with PW3 resulting in pregnancy to her and that the said intercourse whether by consent or without consent would attract the liability under Section 376 I.P.C. as PW3 was aged less than 16 years. 2. Insofar as collection of foetus by aborting PW3 and collection of blood samples from PW3 as well as the accused and examination of DNA profiles from all the above three samples, there is unquestionable medical and scientific evidence to the effect that the accused had sexual intercourse with PW3 resulting in her pregnancy. The only question to be considered herein is whether the prosecution was able to prove that PW3 was of less than sixteen years of age by the date of offence in January, 2004. 3. PW3 deposed that by January 2004, she studied 8th standard in ZP High School for girls. She was examined in the lower Court on 04.07.2005. In cross-examination by the Additional Public Prosecutor, PW3 deposed that she was aged seventeen years by the date of her examination and that her date of birth is 15-12-1989. If 15-12-1989 is correct date of birth of PW3, then by the date of her examination in the trial Court on 04.07.2005, she was aged fifteen years only and running sixteenth year and not aged seventeen years. In cross- examination by the defence counsel, PW3 admits that by that date, she was a major. She denied the suggestion that her year of birth was in the year 1985 and not 1989. Even though PW3 was school going girl, the prosecution did not make any attempts to collect and produce school admission register in order to find out her age as per school records. Age of PW3 was not elicited from either of her parents namely PWs 1 and 2. If PW3 was a major i.e. of eighteen years of age by the date of her examination in the trial Court on 04.07.2005, then by January 2004, when the offence is said to have been committed, PW3 was aged more than sixteen years. 4. PW10 is the Civil Assistant Surgeon in Forensic Medicine, Gandhi Medical College, Secunderabad. He examined PW3 for age determination and gave Ex.P17-age certificate. It is his evidence that as per general, physical, dental and radiological examination, PW3 was aged about fifteen years. In cross-examination, he admits that the age determined by him is not the exact age and it is approximate age. It is contended by the appellant’s counsel that a margin of two years is liable to be given for such age determination. He placed reliance on Sunil Vs. State of Haryana[1] and Alamelu Vs. State[2] of the supreme Court on this aspect. If such margin of two years is given in favour of the accused over and above the age determined in Ex.P17, then age of PW3 would be seventeen years by 29.04.2004, when PW10 examined PW3. Thus, viewed from any angle, the prosecution failed to produce any definite and conclusive evidence to show that PW3 was aged less than sixteen years by January 2004, when the offence was said to have been committed. In the absence of denial of rape or sexual intercourse by the victim PW3 and in the absence of conclusive proof of PW3’s age being less than sixteen years by January 2004, in my opinion, the lower Court erred in finding the accused guilty under Section 376 I.P.C. 5. In the result, the Criminal Appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. __________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:09.11.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.106 of 2006 Dt:09.11.2011 ysk [1] 2010 (1) ALT (Crl.) 219 (SC) [2] AIR 2011 SC (Criminal) 382